IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


y 


^o 


O 


/- 


,^r 


,srA^ 


/^i'^ 


.^ 


(/. 


1.0 


I.I 


150 


2f    lii     l™^ 


1.8 


L25  iU    1.6 


V] 


v) 


^^^^ 


^;i 


'>> 


/A 


''W 


'/ 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  Institut  Canadian  de  microreproductions  historiques 

1980 


Technical  Notes  /  Notes  techniques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Physical 
features  of  this  copy  which  may  alter  any  of  the 
images  in  the  reproduction  are  checked  below. 


D 
D 
D 
D 


Coloured  covers/ 
Couvertures  de  couleur 


Coloured  maps/ 

Cartes  gdographiques  en  couleur 


Pages  discoloured,  stained  or  foxed/ 
Pages  ddcolordes,  tachet6es  ou  piqu^es 


Tight  binding  (may  cause  shadows  or 
distortion  along  interior  margin)/ 
Reliure  serrd  (peut  causer  de  I'ombre  ou 
de  la  distortion  le  long  de  la  marge 
intdrieure) 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Certains 
ddfauts  susceptibles  de  nuire  d  la  quality  de  la 
reproduction  sont  not6s  ci-dessous. 


D 


Coloured  pages/ 
Pages  de  couleur 


Coloured  plates/ 
Planches  en  couleur 


Show  through/ 
Transparence 


Pages  damaged/ 
Pages  endommagdes 


Tl 

P< 
of 
fil 


Tl 

C( 

01 

ai 

Tl 
fil 
in 


IV 
in 
u| 
b( 
fc 


n 


Additional  comments/ 
Commentaires  suppl6mentaires 


Bibliographic  Notes  /  Notes  bibliographiques 


D 
D 

n 


Only  edition  available/ 
Seule  Edition  disponible 


Bound  with  other  material/ 
Relid  avec  d'autres  documents 


Cover  title  missing/ 

Le  titre  de  couverture  manque 


D 
D 
D 


Pagination  incorrect/ 
Erreurs  de  pagination 


Pages  missing/ 
Des  pages  manquent 


Maps  missing/ 

Des  cartes  g^ographiques  manquent 


D 
D 


Plates  missing/ 

Des  planches  manquent 


Additional  comments/ 
Commentaires  suppl6mentaires 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Les  images  suivantes  ont  6t6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetd  de  I'exemplaire  filmd,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


The  last  recorded  frame  on  each  microfiche  shall 
contain  the  symbol  —*>  (meaning  CONTINUED"), 
or  the  symbol  V  (meaning  "END"),  whichever 
applies. 


Un  des  symboles  suivants  apparaftra  sur  la  der- 
nidre  image  de  cheque  microfiche,  selon  le  cas: 
le  symbole  — ►  signifie  "A  SUIVRE",  le  symbole 
V  signifie  "FIN". 


The  original  copy  was  borrowed  from,  and 
filmed  with,  the  kind  consent  of  the  following 
institution: 

National  Library  of  Canada 


L'exemplaire  filmd  fut  reproduit  grdce  d  la 
gdn6rosit6  de  I'dtablissement  prdteur 
suivant  : 

Bibliothdque  nationale  du  Canada 


Maps  or  plates  too  large  to  be  entirely  included 
in  one  exposure  are  filmed  beginning  in  the 
upper  Inft  hand  corner,  left  to  right  and  top  to 
bottom,  as  many  frames  as  required.  The 
following  diagrams  illustrate  the  method: 


Les  cartes  ou  les  planches  trop  grandes  pour  dtre 
reproduites  en  un  seul  clich6  sont  filmdes  d 
partir  de  Tangle  sup6rieure  gauche,  de  gauche  d 
droite  et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Le  diagramme  suivant 
illustre  la  m^thode  : 


1 

2 

3 

1 

2 

a 

4 

5 

6 

Compl' 
JC 


Li 


V 


f 

R^F|§^F,RY  Rights 

IN  ThE 

North  Atlaniic. 

• 

By 
JOa    I.    DORAN. 

"Our  Fisheries "-Thos.  Jefferson. 

PHILA'BEI.PHIA : 

ALLEN,    LANE  &  SCOTT'S  PRINTING  HOUSE, 

No9.  3*9,  231,  and  233  South  Fifth  Street. 

1888. 

u 

ttf. 

VM.' 


m 


ih^tlk^Mi^iSi.'mk^^i 


^^^M 


'M^m,d:^ 


^^^^l^^^v^^l 


I 


"X.W 


r1 


/X^-^^-iX  t  xV,         ^^-^.J-^i^        ^ 


Our  Fishery  Rights 


IN    TIIIC 


North  Atlantic. 


I 


Bv 


JOS.    I.    DORAX. 


'Our  Fisheries "—Tlios.  Jefferson. 


PHII^ADELPHIA  : 
ALLKN,    LANE    &   SCOTT'S   PRINTING   HOUSIi, 

Nos.  229,  231,  and  233  South  Fifth  Street. 
1888. 


l'Ki:iACH. 

The  "  cliffcrciiccs  "  uitli  Canada  alxmt  our  fisher)'  rii^hts  in 
the  North  Atlantic  arc  still  unsettled,  and  in  older  to  determine 
what  are  proper  terms  for  the  settlement  of  the  ilispute  it  is 
necessary  to  examine  the  title  under  which  we  claim  our  rii^r.ts, 
and  the  extent  to  which  we  have  been  enabled  to  enio\-  them. 

Notwithstanding  the  rejection  of  the  Cliamberlain-liaxard 
treat)-  b)'  the  Senate,  the  policy  influenciMf^^  the  present  Ad- 
ministration at  Washinf^ton,  in  its  negotiation,  is  still  in 
control;  and  as  Mr.  Clexeland  has,  b\- his  message  to  Con- 
gress of  August  23d,  1.S8S,  officiall)-  declared  "that  the 
treaty  just  rejected  1)\-  the  Senate  was  well  suited  to  the 
exigency,  and  that  its  proxisions  were  adecpiate  for  our  secu- 
rit}'  in  the  future  from  vexatious  incidents  and  for  the  promo- 
tion of  friendlx'  neighborhood  antl  intimacy  without  sacrific- 
ing in  the  least  our  national  pride  or  dignity,"  it  is  jjlain  that 
he  would  ap|)rove  another  treat}'  containing  similar  pro\isions. 

Mr.  Chamberlain,  speaking  at  J^irmingham,  March  2Sth, 
1888  [see  London  Times  of  March  29th.  18S8],  said:  "  I  ob- 
ser\'e  that  within  the  last  da\'  or  two  Mr.  Ba\'ard  ["  Hear, 
hear  !  "],  a  tlistinguished  man  who  occupies  at  the  present  time 
the  position  of  Secretary  of  State  in  America  [cheers],  has 
declared  that  in  his  judgment  the  treat}'  concedes  to  American 
fishermen  all  that  in  reason  and  justice  the}'  can  ask  from  the 
Government  of  Canada.  [Cheers.]  But,  if  that  be  so,  the 
refusal  of  such  a  settlement,  the  rejection  of  such  an  olive 
branch  held  out  to  the  American  people,  would  throw  a  heavy 
responsibility  on  the  shoulders  of  those  who  would  prolong 
the  state  of  irritation  and  of  dangerous  antagoni.im  which 
prevailed  only  two  years  ago  in  the  relations  between  Great 
Britain  and  the  United  States.  ["  Hear,  hear!  "]  I  hope,  as 
I  have  said,  that  nothing  of  the  ^  will  occur;  but  in  any 
case,  even  if  the  final   result   shoiiid   be  delayed,  we   have  at 

(3) 


least  succccdccl  in  putting  on  record,  in  the  niost   formal  and 

cxccut  vcs  „f  ,l„cu  nat.ons  as  to  what  constitutes  a  j.st  and 
honorable,  a  fan-  and  reasonable,  settlentent  of  the  differences 
that  have  ansen  between  then,.  That  cannot  be  left  o„t  of 
account  jn  the  future  ;  ,>  „..,  „,y/.,«„  ,„./  ,;,  „,  ,  J  ^^ 

I  .io  not  beheve  any  fair  or  reasonable  man   either  in  Cnvnh 
or  n,  the  United  States,  wo.dd  desire  .0  i,n,;re 

The  pohey  of  the  present  Administration  on  .l,e  question 

thus  hav.nK  been  declared,  and  Mr.  Chamberlain  hav  nc  an 

"ounced  that  the  rejected  treaty  ■•  must  influence  and   in    he 

end  must  govern  the  final  disposition  of  the  question,"  anv 

ons,derat,on  of  our  fisheries  rights  now,  or  hereafter,  u'il    be 

:3"'""'  '■'"  — ■-""-^"--  provsion^of  th: 


a  IK  I 


TiiK  Ri(;iiTs  or  riir:  rxiTKi)  Statks  ix  tiii-: 
North  Atlaxtk^  Imsiikkiks. 


The  lights  «("  the  United  States  in  tlie  Xortli 
Atlantic  Fisheries  are  in  tlie  natnre  of  a  Joint 
ownersliip  or  tenancy  in  common  with  snbjects 
of  tin;  British  Crown,  proprietary  rij^lits  fnlly  as 
jifreat  and  tlie  same  as  those  <)f  Canada  itself, 
antl  they  are  rij>iits  existing  in  the  irnite<l  States 
withont  any  corresponding  right  in  British  sub- 
jects on  our  coast. 

B}' Article  III.  of  the  treaty  of  peace  of  i/cSj,  by  uliich 
England  recognized  the  United  States  as  "  free,  sovereign,  and 
independent  States,"  it  was  declared,  as  an  incident  of  their 
separate  sovereignt\' : — 

"  Tliat  tlie  people  of  the  rnited  States  sliall  coiitimie  to  enjoy,  imnio- 
lested,  the  rii^lit  to  take  t'lsli  of  every  kind  on  tlie  <  Irand  IJank  and  on 
all  the  otiier  hanks  of  Newfoundland  ;  also  in  the  (iiilf  of  St.  Lawrence, 
and  at  all  otiier  places  in  the  sea  where  the  inhahitants  of  both  comitries 
used  at  any  time  heretofore  to  lish  ;  and  also  that  the  inhabitants  of  the 
United  States  shall  have  the  lii)erty  to  take  tish  of  every  kind  on  such 
part  of  the  coast  of  Newfoundland  as  Britisii  tishernieii  shall  use  (but 
not  to  dry  or  cure  the  same  on  th.it  island);  and  also  on  the  coasts, 
bays,  and  creeks  of  all  otlur  of  His  Britannic  Majesty's  dominions  in 
America;  and  that  the  American  fishermen  shall  have  liberty  to 
dry  and  cure  lish  in  any  of  tlie  unsettled  hays,  iiarbors,  and  creeks 
of  Nova  Scotia,  M  i.ndalen  Islands,  and  Labrador  so  loui;-  as  the  same 
shall  remain  unsettled  ;  but  so  soon  as  tiie  same  or  either  of  them  shall 
be  settled  it  shall  not  be  lawful  for  the  said  fishermen  to  drv  or  cure  fish 
at  sucii  settlement  wiliiout  a  i>revious  aisM-eement  for  that  purpose  v.'ilh 
the  inhabitants,  proprietors,  or  possessors  of  the  ground." 

"  Continue  to  enjoy  unmolested  the  right  to  take  fish  "  antl 
other  explicit  expressions  in  the  treaty,  the  history  of  Amer- 
ican rights  in  the  fisheries,  and  of  the  negotiations  of  the 
treaty  show  that  Article  III.  of  the  treaty  of  1783  was  a  delib- 
erate and  express  acknowledgment  of  existing  rights,  and 
not  the  grant  of  new  ones. 

(5) 


Ill  till'  tK'h.itc  on  tlu:  treat)-  in  tlu;  Ildiisc  of  Lords  the  po- 
sition taken  by  Lord  Louj^lihoroii^h,  tliat  "the  fishery  on  tiie 
shores  retained  In-  Hritain  is  in  tlie  newt  article  not  ei-ded 
but  roco|4ni/e(l  as  a  i-it,dit  inherent  in  the  Americans,  whicii, 
thoiiLdi  no  Ioniser  British  subjects,  lhe'\-  are  to  continue  to 
enjoy  unniolesteil — no  rii^lil,  on  tJic  other  Itaiid,  hciiii^-  rcsuvcd 
to  British  siihjiits  to  af^f^roach  their  shores  to/-  the  [purpose  of 
fishing,  in  this  reeiproeal  treotr,"  was  not  denied. 

Cobbett's  I'arlianientary  History.  \-ol.  2^;,  \y.v^c  42tS. 

Whate\er  rij^hts  C'aiiadian  nslieriiieii   eiijo)-  in  the  fisheries 
of  the  Xoith  Atlantic  were  won  by  tlie  men  of  New  lM\i,dand 
from   the  I'"iench   in  colonial   days.     While  colonies  of  Great 
Jiritaiii  "the  Americans  had  liilhei-to  almost  alone  ens^a^'ed  in 
the  fislieries  on   llu'  coast  of  Nova  Scotia  and  the  (inlf  of  .St. 
Lawrence.     The    New    I'-ii^land   men    liad    planned   and    had 
alone   furnislied   land   forces   for  the   first   reduction   of  Cape 
Breton,  and   had  assisted   in   the  acquisition   of  No\a  .Scotia 
and  Canada.      The   men   of  IMassacluisetts  therefore  claimed 
the  fislieries  on  their  coasts  as  a  ])erpetual  joint  propert}-." 
]?ancroft's  IL'stor)-  ot  the  C.  .S.,  xol,  5,  \)a_L;e  321  ; 
Sabine's  Report  on  the  I'isheries,  185-196; 
Winsor's  Crit.  i^  Xar.  I  list.  Ameiica,  vol.  5,  pag>.\s  147, 
407. 

On  April  4th,  174S,  a  committee  of  the  House  of  Tarlia- 
ment  adopted  the  following  resolution  : — 

"  /\'rsotzu'(t,  Tliat  it  is  tlie  opinion  of  tliis  committee  lliat  tlie  several 
l)roviiiees  and  colonies  of  Massachusetts  !5ay,  New  Hamiisiiire,  Comiec- 
ticiit,  ami  Rhode  Island  l)e  reimbursed  tiie-  expenses  they  have  l)eeii  at 
ill  takinj;  and  securins;'  to  tiie  Crown  of  Great  Hritain  the  island  of  Cape 
lireton  and  its  dependencies." 

Journal  of  the  House,  vol.  xxv. 

"  These  expenses,"  said  Edmund  Ikirke,  in  his  .speech  on 
conciliation  with  America,  "  were  immense  for  such  colonies. 
They  were  above  ;^200,ooo  sterling;  money  first  raised  and 
advanced  on  their  public  credit." 

The  colonists  of  New  l{)nglantl,  at  the  Declaration  of  Inde- 
pendence, were   enjoxing  equal  rights  and  a  joint  ownership 


ii.-ul 


with  Hritish  fishermen  in  the  North  Atlantic  fisheries,  and  as 
the  United  States  were  successful  in  inaintainin.i,^  tlieir  inde- 
IK-ndeiice  the\-  insisted,  in  tiie  negotiations  for  peace,  that  tliese 
y\'^h[s  were  not  U)st  to  them  hy  the  severance  of  tlieir  relations 
with  the  ]iritish  Crown  and  shouM  he  expressly  recognized 
in  the  treat)-  of  j)eaci'. 

These  rights  had  been  eonllrnu-d  and  tlefiiied  In-  the  char- 
ters of  Xcw  England,  and  when  the  Jiritish  Farliam'ent  passed 
the  act  of  March,  i;;5,  to  prohibit  the  colonies  of  New  Eng- 
land from  fishing  <.n  the  banks  of  Newfoundland,  sixtcai 
peers,  among  them  Lord  Camden  and  Lord  Rockingham, 
protested  against  the  passage  <.f  the  act,  "because  the  people 
of  New  ]-:ngland,  besides  the  natural  claim  of  mankind  to  the 
gifts  of  Pnn-idence  o//  their  ,n,'i/  cms/,  are  specially  entitled  to 
the  fisher)-  />r  tluir  charters,  wiiich  have  never  been  declared 
forfeited." 

American  Archives,  4th  series,  1774-1  ;;5,  vol.  i.  page 
1 690. 

By  the   charter  of  Massachusetts  Ha\-  of  \(m)\  il 


of  Maine  and  th 


xAI 


)9i  the  |)i()\ince 

c  territorx' of  Acadia  or  Nova  Scotia,  with  the 

lands  (now  New  Brunswick)  lying  between   Nova  Scotia  and 

md  the  northerly  and 
easterly  limits  of  the  province  of  Massachusetts  under  that 
charter   extended   to   the   river  St.  Lawrence,  and  down  the 

c   coast  of  Nova 


une.  were  annexed  to  Mas.sachusett> 


river   St.   Lawrence   and    along   the   Atl'iiit: 


Scotia  to  the  Gulf  of  St.  L 


aw 


rence.     Although  in  1758  a. sep- 


arate con.stitution  was  granted  to  Nova  Scotia  the  charter  ot 
Massachu-setts   W^y  of  1691  continued   in    force,  and   Ma.ssa- 


chusetts  and  Maine 


remained   under  it  and  were  entitled  to 


the  benefit  of  its  provisions  until  the  Revolut 
Cliarters   of   I\Lassacl 


ion. 


uisetts    Ba)-   of    1627   and    1691  ; 
Charters  and  Constitutions  of  tiie  U,  S..  part  i,  pages 

932-954 ; 

Jolin  Adams  to  \Vm.  Tudor.     Adams'  Works,  vol.  x 


P'ige  354 


Haliburton's    Historical    and    Statistical    A 
Nova  Scotia,  vol.  i.,  pages  -ji,  144,  210; 

.Vinsor's  Crit.  &  Nar.  Hist.  Anieri 
479-481. 


ccount    of 


ca,  vol.  5,  pages  91, 


^ 


1  '     t 


8 

By  the  charter  of  1691  it  was  expressly  provided  that  the 
subjects  of  the  British  Crown — 

"That  they  and  every  of  tlieni  shall  have  full  and  free  jiower  and 
liberty  to  coutiuuc  and  use  their  said  trade  o/fis/iitio  upon  the  said  coasts, 
in  any  of  the  seas  thereunto  adjoining,  or  any  arms  of  the  said  seas  or 
salt-water  rivers  zv/iere  they  have  been  xcont  to  fish,  and  to  build  and  set 
upon  the  lands  within  our  said  province  or  colony  lying  waste  and  not 
then  possessed  by  particular  proprietors,  such  wharves,  stages,  and 
workhouses  as  shall  be  necessary  for  the  salting,  drying,  keeping,  and 
p.-icking  of  their  fish,  to  be  taken  or  gotten  upon  that  coast,  and  to  cut 
down  and  take  such  trees  and  other  materials  there  growing,  or  being  or 
growing  upon  any  parts  or  jilaces  1\  ing  waste  and  not  then  in  possession 
of  particular  proprietors,  as  shall  be  needful  for  that  purpose,  and  for  all 
other  necessary  easements,  helps,  and  advantages  concerning  the  trade 
of  fishing  there,  in  such  maimer  and  form  as  they  haze  been  hereto/ore 
at  any  time  aecustomed  to  do,  without  making  any  willful  waste  or  spoil 
anything,  in  these  presents  contained  to  the  contrary  notwithstanding.'' 


The  phrases  "  continue  to  enjoy  unmolested  the  right  to  take 
fish,"'  and  "  used  at  anj-  time  heretofore  to  fish,"  in  the  Treat}'  of 
1783,  are  only  repetitions  of  the  expressions  "  continue  and  use 
their  said  trade  of  fishing"  "where  they  have  been  wont  to 
fish,"  and  "  as  they  have  been  heretofore  at  any  time  accus- 
tomed to  do,"  in  the  charters  of  1629  and  1691  ;  and  word 
"liberty"  is  found  in  the  charters  of  1C27  and  1691  as  well 
as  in  the  Treaty  of  1793.  The  Treat)'  of  1783  was  little  more 
than  a  confirmation  of  the  ancient  and  chartered  rights  rec- 
ognized in  the  charters  of  1627  and  1 69 1. 

Down  to  the  Revolution  Nova  Scotia  was  hatdl}"  known 
except  for  its  fisheries.  In  1793  a  witness  before  a  committee 
of  Commons  spoke  of  the  island  of  Newfoundland  "  as  a 
great  English  ship  moored  near  the  banks  during  the  fishing 
season  for  the  convenience  of  English  fishermen,"  and  that 
"  the  governor  was  considered  the  ship's  captain,  and  all  those 
concerned  in  the  fishing  business  as  his  crew." 

Sabine's  Report  on  the  Fisheries,  pages  237-230  ; 
Winsor's  Crit.  &  Nar.  Hist.  America,  vol.  5,  page  407. 


The  men  and   ships  engaged  in   the   fisheries  were  mainly 

In  fact,  the  fisheries  were  almost,  if  not 


from  New  England 


entirely,  conducteci  b\'  the  people  of  New  England  alone. 
In  colonial  daj's  fish  was  the  chief  staple  commodity  of  New 
iMigland,  as  tobacco  was  in  Virt,nnia.  The  fishing  towns  were 
thriving  and  populous,  and,  so  far  as  the  people  on  this  conti- 
nent were  concerned,  the  fisheries  on  the  shores  of  Nova 
Scotia  and  Newfoundland,  in  the  Gulf  of  St.  Lawrence,  and 
on  the  banks  were  to  all  intents  and  purposes  the  fisheries  of 
New  England.  The  shores  immediatcl)-  adjacent  to  the  fish- 
eries were  sparsely  peopled,  and  were  used  only  in  connection 
with  the  fisheries.  Halifax  itself  was  settled  for  the  prosecu- 
tion of  the  fislieries.  Instead  of  the  fisheries  being  an  appurte- 
nant to  the  neighboring  coasts,  the  coasts,  on  the  ct)ntrary, 
were  entircK'  subservient  to  the  fisheries,  and  were  onK*  used 
as  an  accommodation  to  their  prosecution. 

Sabine's  Report  on  the  Fisheries,  pages  227,  237,  250, 

261,  303,390; 
Haliburton's  Nova  Scotia,  vol.  i.,  pages  243,261,265. 


Hon.  Charles  Levi  \V(Midbur\',  in  his  "Headlands"  pam- 
phlet, in  showing  the  distinct  independence  of  the  fisheries 
from  the  ownership  of  the  soil  of  the  coasts  and  the  appurte- 
nant subjeclion  of  the  coast  to  the  uses  of  the  common  fish- 
ery, says : — 

"This  rliaitfri)f  William  and  Mary  remained  in  force  until  tlie  Amer- 
ican Revolution,  ihout;]!  Nova  .Scotia  had  soon  passed  under  I*~rencii  rule. 
The  api)urtenant  character  of  tile  British  colonial  coasts  to  these  fisher- 
ies came  in  (|uestion  after  the  Revolution,  and  the  Treaty  of  17.S3  evi- 
dently is  based  npoii  and  reco,y;nizes  tiiis  principle,  that  the  fishery  was 
not  an  apjiurtenant  of  the  shore  of  tiie  colonies  remainin,i;-  to  Great  Brit- 
ain. It  was  not  tile  main  object  of  the  treaty  to  i;ive  fishery  ni;hts  to 
one  not  entitled  previously  thereto,  but  was  to  relieve  the  sliores  by 
contract  of  as  nuicli  of  these  old  uses  as  the  second  party  w  as  willinjj  to 
relinquish  of  iiis  own  ri^lit  therein.  Thus  while  the  United  States  yields 
the  ri.uht  to  dry  and  cure  fish  on  the  shores  of  Newfoundland,  it  retains 
the  right  to  dry  and  cure  fish  in  any  of  the  unsettled  i)ays,  harbors,  and 
creeks  of  Nova  .Scotia,  Magdalen  Islands,  and  Labrador  ;  and  where 
they  are  settled,  to  dry  and  cure  with  the  consent  of  the  inhabitants,  pro- 
prietors of  the  .^rounds." 

An  express  recognition  of  our  fishery  rights  was  one  of  the 
ultimatums  of  peace  at  the  close  of  the  Revolutionary  War, 


lO 


but  lCii,i;Iaiul  naturall}-  opposed  this  claim  and  resisted  it  to  tlie 
utmost. 

"  At^ainst  tin-  ISiitisli  drafl  of  tlu'  article  on  tlie  fisheries,  Joliii  Adams, 
witli  tlie  steady  and  ellicienl  sniijjort  (jf  I'"raiiklin  and  of  Ja>',  sjioke  witli 
the  mori-  el'll-ct  as  it  inlrodiired  an  arl)itrary  restriction  ;  and  lie  declared 
he  u'oulil  not  set  his  iiaiid  to  tlie  treaty  unless  the  limitations  were 
stricken  out.  Alter  lon.n'  altercations  the  arti'le  was  reduced  to  the  form 
in  w  liicli  it  ajjpears  in  tlie  treaty,  .uraiilini^'  to  the  I'liited  Stales  e(|ual 
rii^iits  witli  the  liritisii  (ishermen  to  take  fish  on  the  coast  of  Newfound- 
land and  on  the  coasts,  hays,  and  creeks  of  all  other  Hritish  dominions 
in  America." 

liancroft's  History  of  the  U.  S.,  vol.  v,  paoe  579. 

"That  third  article  was  demanded  as  an  ultimatum,  and  it  was  de- 
clared that  no  treaty  of  peace  should  e\er  be  made  without  it,  and  when 
the  Ih'itish  ministers  found  that  peace  could  not  Ix- made  without  that 
article  they  consented,  for  ISritain  wanted  peace,  if  possible,  more  than 
we  did." 

John    Adams    t(j  William   Thomas,  Aug.    loth,    i<S22, 
Adams'  Works,  xol.  x,  patje  404. 

The  Continental  Congress  had  by  its  resolution  of  May 
27th.  1779,  declared  "  that  in  no  case  by  an)'  Treaty  of  Peace 
the  common  right  of  fishing  be  given  up." 

The  w  riter  of  an  article  in  a  late  number  of  the  JVi'^c  York 
Tribi(ih\  gi\ing  a  histor\- of  the  American  fishery  rights,  makes 
the  folhnving  concise  and  clear  statement  of  the  position  taken 
b\-  tlie  United  States  in  the  negotiations  for  peace  at  the  close 
of  the  Re\-oliition  : — 

"  In  the  ne.i;oti.itions  for  peace  at  the  close  of  the  Revolution,  equal 
rii;iits  to  the  fisheries  were  imperatively  demanded.  The  colonists  were 
iinwillint;  to  make  peace  on  any  other  terms.  Mr.  Livingston,  .Secretary 
of  .State,  wrote  to  Dr.  I">anklin  :  'If  we  were  tenants  in  common  with 
(ireat  Hritain  while  tinited  with  her,  we  still  continue  so,  unless  wi-  have 
reliiuiuished  oiir  title.  ( )ur  ri.ghts  are  not  invalidated  by  this  separation, 
more  particularly  as  we  have  kept  nj)  our  claim  from  the  commencement 
of  the  war,  and  assigned  the  attempt  of  (Ireat  Hritain  to  exclude  us  from 
the  tisheries  as  one  of  the  causes  of  (jiir  recuriiii};  to  arms.'  The  Conti- 
nental Congress  instructed  John  Adams  by  resolution  'that  it  is  essential 
to  the  welfare  of  all  the  I'nited  .States  that  the  inhabitants  thereof,  at  the 
expiration  of  the  war,  should  continue  to  eiijtjy  the  free  and  undisturbed 
exercise  of  their  common  right  to  fish  on  the  banks  of  Newfoundland 
and  the  other  fishing  banks  and  seas  of  North  America,  preserving  in- 


It 


1 


II 


I  822. 


violate'  the  treaties  l)L't'.\ctii  France  and  tiie  United  States.'  The  ori.u;!- 
nal  l)ases  of  peaci- pro])!  sed  by  Dr.  i'ranklin  were  political  iiidependenee, 
an  adjustment  of  boniuiaries,  anil  unrestricted  rii;hts  to  the  lislieries  ; 
and  ti)ese  were  adojited  after  a  prolon.ued  diplomatic  strnt;i;le,  notwith- 
standing;- iiosiile  intrii;ues  by  I'^rance  and  Spain.  John  Adams  was  as  in- 
tlexible  in  his  refusal  to  conclude  peace  without  obtainini;  explicit  reco;;- 
nitiou  of  the  fishiii!;  franchises,  as  .Sanniel  .Adams  was  intrepid  and  vehe- 
ment in  hisdedarationsal  ISoston  that  war  nnist  be  resiuned  if  those  ri.i;hts 
were  denied  to  New  IJiidanil.  Wiien  the  liritish  Commissioners  oliject- 
ed  to  the  word  'ri.i;ht'  in  the  fisheries  clause,  he  indii;nantly  exclaimed  : — 

"  'Is  there  or  can  there  be  a  clearer  ris^ht?  In  former  treaties,  that  of 
Utrecht  and  that  of  Paris,  l'"rance  and  l-.ni^land  have  claimed  the  ri!;ht 
and  used  the  word.  ■■  *  -'  If  iieaven  at  the  creation  ,y;ave  a  rigiit, 
it  is  ours  at  lea.st  as  much  as  yours.  If  ()Ccui)alioii,  use,  and  possession 
j;ive  a  ri.y;ht,  we  have  it  as  clearly  as  you.  If  war,  and  blood,  and  treas- 
ure give  a  ris;lit,  ours  is  as  good  as  yours.  We  have  been  continuously 
figlning  in  Canada,  Cajie  I'.reton,  and  Nova  Scotia  for  the  ckfense  of  this 
lisher\-,  and  ha\e  expended  beyond  all  proportion  more  tiian  xou.  If, 
then,  liie  rigiit  cannot  be  denied,  wiiv  should  it  not  be  acknouledged 
and  put  out  of  disinile?  W'Jiy  should  we  leave  room  for  illiterate  fisher- 
men to  wran.gle  and  chicane?' 

■'Mr.  Jay  and  Mr.  Laurens,  Associate-  American  Connnissioners,  mi- 
etjui vocally  supported  Mr.  Adams  in  his  relusal  to  make  peace  unless 
the  fisheries  were  included. " 


l"ji"iaiKl  finallx'  \icl(lcd  to  our  claim,  and  bv  the  Trcat\'  of 
Peace  acknowledoed  our  proprietary  title  or  riglits  of  owner- 
ship in  the  fisheries  as  well  as  our  independence,  and  no  cor- 
responding rights  were  conferred  upon  or  conceded  to  British 
subjects  on  the  coasts  of  the  United  States. 

Our  title,  therefore,  under  the  Treaty  of  1783  is  one  of  joint 
ownership  with  the  subjects  of  the  British  Crown,  a  title 
equal  to  and  as  good  as  theirs,  appiirtenant  to  our  separate  sov- 
ereicrntv  declared  and  established  bv  our  War  for  Independ- 
ence,  and  without  any  corresponding  right  on  the  part  of 
British  subjects  on  the  coasts  of  the  United  States. 

John  Adams,  in  a  letter  to  Richard  Rush,  dated  April  5th, 
1815  (Adams'  Works,  vol.  x,  page  160),  said: — 

"2.  We  have  a  rigiil  (1  know  not  very  well  how  to  express  it)  but 
we  have  the  right  of  Hritish  subjects.     Not  that  we  are  now  ]>ritish  sub 
jects  ;  iKjt  that  we  were  British  subjects  at  the  treaty  of  17.S3,  but  as  hav- 
in.g  been   I'ritish  subjects,  and  entitled  to  all  the  rights,  liberties,  privi- 
leges, and  immunities  of  British  subjects,  which  we  had  possessed  before 


12 


tlie  Revolution,  wliicli  \vl-  iievur  liad  surrendered,  forfeited,  or  relin- 
(luislied,  and  uliicli  we  never  would  relin(|uisli  any  farther  than  in  that 
treaty  is  expressed,  our  rij;hl  was  clear  and  indubitable  to  lish  in  all 
places  in  the  sea  where  Hritish  subjects  had  fished  or  ever  had  a  ris^ht 
to  fish. 

"3.  W'e  have  a  stronger  and  clearer  rij;lit  to  all  these  lisheries  in  their 
largest  extent  than  any  Mritons  or  Europeans  ever  had  or  could  have, 
for  they  were  all  indebted  to  us  and  our  ancestors  for  all  these  fisheries. 
We  discovered  them  ;  we  explored  them  ;  we  settled  the  country,  at  our 
own  expense,  industry,  and  labor,  without  assistance  fVoni  Hritain  or 
frt)m  Europe.  W'e  possessed,  occupied,  exerciseil,  and  practiced  tliem 
from  the  l)ei;innin<i:.  We  have  done  more  towards  explorint;  the  best 
fishint;-  grounds  and  stations,  and  all  the  hart)()rs,  bays,  inlets,  creeks, 
coasts,  and  shores  where  lish  were  to  be  fouiul.  and  had  tliscoveretl  by 
experiments  the  best  means  and  methods  for  preserving,  curing,  drying, 
and  perfecting  the  conmiodity,  and  done  more  towards  perfecting  the 
commerce  in  it,  than  all  the  Hritons  and  all  the  rest  of  Kurf)pe. 

"4.  We  coiuiueretl  Cape  Breton  and  Nova  Scotia,  dispossessed  the 
French,  botli  hostile  and  neutral,  and  did  more,  in  proportion,  towards 
the  concpiest  of  Canada  than  any  other  portion  of  the  Hritish  empire  ;  and 
would  and  coukl  and  should  have  done  tiie  whole,  at  an  easier  expense  to 
ourselves,  both  of  men  and  money,  if  tiie  British  government  would  have 
permitted  that  union  of  colonies  wiiich  we  jirojected,  planned,  earnestly 
desired,  ami  humbly  petitioned.  In  sliort,  we  hail  done  more,  in  pro- 
|iortion,  towards  protecting  and  defending  all  these  fisheries  against  tiie 
Frencii  tliaii  aiudther  jiart  of  tlie.  British  empire,  l-'or  al'  these  reasons, 
if  there  is  a  people  under  he  en  who  couUl  advance  a  claim  or  a  color 
of  a  |)retension  tt)  any  exclusive  privileges  in  the  fisheries,  or  any  rights 
in  our  jiart  of  the  old  British  empire  more  than  another,  that  people  are 
the  inhabitants  of  the  United  States  of  America,  especially  of  New  luig- 
land.  But  we  set  up  no  claims  but  those  asserted  and  acknowledgetl  in 
the  treaty  of  17^3.  The.se  we  do  assert,  and  these  we  will  have  and 
maintain." 

Sec  also  Letter  R.   R.   Liviiii(stoii  to  Beiij.  Franklin, 
Jan.  7,  1782  ;  Si)ark's  Franklin,  vol.  9,  pay^e  135. 


!  '   I 


In  the  treaty  of  j^eace  made  at  Ghent  between  Great  Britain 
and  the  United  .States,  at  the  termination  of  the  War  of  181 2, 
no  reference  is  made  to  the  fisheries.  During  the  negotiation 
of  that  treaty  Great  Britain  claimed  that  the  fisliing  rights 
within  the  limits  of  British  Sovereignty  reserved  to  the  United 
States  in  the  Treaty  of  1783  were  annulled  by  the  war;  Com- 
missioner Goulding,  one  of  the  British  Commissioners,  stat- 
ing that  although  it  was  not  intended  to  contest  the  ri<rht  of 
the  United  States  to  the  fisheries,  "  jet,  so  far  as  respected  the 


it 


13 


il,  or  rc'lin- 
liaii  ill  that 
>  I'isli  ill  all 
liad  a  ii<jiit 

lies  ill  liieir 
ould  iiave, 
■^t-'  risiit-ries. 
iitry,  at  our 
Britain  or 
tict't]  tlieiii 
i.i;'  tiie  best 
;ts,  crtel<s, 
:overt'(i  by 
V<,  dryinji;, 
"ectiiig  the 

sessecl  tile 
II,  towards 
ipire  ;  and 
■xpeiise  to 
onld  liave 
earnestly 
e.  in   ])!-()- 
gainst  tile 
i  reasons, 
or  a  color 
my  riylits 
eople  are 
•^'ew  ]--ni;- 
led,i;etl  in 
lave  and 

ranklin, 

155  ri  tain 
'f  1812, 
:itiation 
rights 
United 
;  Com- 
s,  stat- 
ight  of 
ted  the 


concessions  to  land  and  dry  fish  within  the  exclusive  jurisdic- 
tion of  the  British,  it  was  proposed  not  to  renew  that  without 
an  equivalent." 

Memoirs  J.  Q.  Adams,  vol.  2,  page  6. 

t 

The  United  States  maintained,  however,  that  our  fishery 
rights  and  liberties  stood  on  the  same  foundation  as  our  right 
to  independence  and  our  territory;  that  the  Treaty  of  1783 
conveyed  no  new  riglits,  but  acknowledged  and  confirmed 
existing  rights  and  liberties  enjo\-ed  before  the  War  of  Inde- 
pendence ;  that  the  treaty  was  the  partition  of  an  empire,  antl 
a  perpetual  agreement — one  of  those  fundamental  agreements 
incorporated  into  the  very  existence  of  the  United  States  there- 
from ;  and  that  our  fisliery  rights  and  liberties  were  no  more 
affected  by  the  War  of  18*12  than  our  right  of  independence  ; 
that  unlike  another  class  of  treaties,  the  Treat}-  of  1783  was 
to  be  regarded  as  perpetual  and  of  the  nature  of  a  deed  in 
which  tlie  fisheries  were  an  appurtenant  of  the  soil  conveyed, 
and  that,  therefore,  no  stipulation  was  necessary  to  secure  the 
perpetuity  of  the  ai)pendage  more  than  of  the  territory  itself 

Wheaton,  in  his  International  Law,  gives  the  following  ac- 
count of  the  claim  of  Great  Britain  and  the  position  of  the 
United  States : — 

"  Durin.u  tiie  negotiation  at  Giient,  in  1S14,  tiie  Britisli  plenipoten- 
tiaries iTiWii  notice  tliat  tiieir  srovernment  'did  not  intend  to  grant 
to  tlie  United  .States,  gratnitonsly,  tiie  privileges  formerly  granted  by 
treaty  to  them  of  lishing  within  the  limits  of  the  British  sovereignty,  and 
of  using  the  shores  of  the  British  territories  for  purposes  connected  with 
the  British  fisheries.'  In  answer  to  this  declaration  the  American  plen- 
ipotentiaries stated  that  they  were  '  not  anthorized  to  bring  into  discus- 
sion any  of  the  rights  or  liberties  which  the  United  .States  have  hereto- 
fore enjoyed  in  relation  thereto  ;  from  their  nature,  and  from  the  pecu- 
liar character  of  the  treaty  of  1783,  by  which  they  were  recognized,  no 
further  stipulation  has  been  deemed  necessary  by  the  Government  of  the 
United  .States  to  entitle  them  to  the  full  enjoyment  of  them  all.' 

"  The  treaty  of  peace  concluded  at  Ghent,  in  1814,  therefore,  contained 
no  stipulation  on  the  subject ;  and  the  British  Government  subsequently 
expressed  its  intention  to  exclude  the  American  fishing  vessels  from  the 
liberty  of  fishing  within  one  marine  league  of  the  shores  of  the  British 
territories  in  Xorth  America,  and  from  that  of  drying  and  curing  their 
fish  on  the  unsettled  parts  of  those  territories,  and,  with  the  consent  of 


14 

tlie  inhabitants,  uitliiii  lliosc  parts  uliicli  Iiad  l)t(tinie  settKd  since  the 
peace  of  i/S,^. 

"In  (hscnssint;  this  (|Utstiiin,  the  Ainerican  ministtr  in  London,  Mr. 
I.  (J.  Adams,  slated,  tiiat  fmni  tiu-  time  the  settlement  in  Xortli 
America,  constilnlin.;^  the  I'nited  Slates,  was  made,  nntil  tlieir  separa- 
tion h'om  (ireat  Ihitain  and  tlieir  estal)lishment  as  distinct  sovert_ij;nties. 
tiiese  lilisirlies  of  fisliin'4,  and  of  drying  and  (  urin.L;  fish,  liad  l)ee-n  en- 
joyed l)y  them,  in  common  uitii  the  otiur  snlyects  of  tiie  ISritisii  empire, 
in  i)oint  of  principle  liiey  were  pre-eminently  entitled  to  the  enjoyment; 
and,  in  point  i>(  fact,  they  liad  enjoyed  more  of  them  than  any  other  portion 
(jf  the  empire  ;  their  settlement  of  the  neigiihoriiiL;-  conntry  havinj^  'lat- 
nrally  led  to  tin-  discovery  and  improvement  of  these  fisheries  ;  ;i'k',  tr»  Ir 
proximity  to  the  jilaces  where  they  were  prosecnled,  havint;;  led  them  to 
the  discovery  of  the  most  advantajjeon.s  fishini;  i^ronnds,  and  .uiven  them 
facilities  in  tiie  ])nrsnit  of  their  occnjiation  in  those  re.i;ions,  which  the  re- 
moter parts  of  tile-empire  conid  not  possess.  It  mi.t;ht  be  atkied,  that 
they  had  contributed  their  fnll  share,  and  more  than  their  share,  in  se- 
ciirini;  tlu-  contjiiest  from  h'rance  of  the  provinces  on  the  coasts  of  which 
these  lisheries  were  situated. 

"  it  was  donbtless  npon  consideratio  is  such  as  tliesi-  that  an  express 
stipulation  was  inserted  in  the  treaty  C:  .7^3,  recot^nizini;  the  rit;lits  and 
liberties  which  had  always  been  ei<joyed  by  the  pet)ple  of  the  I'nited 
States  in  these  hsheries,  and  declarin;^  that  they  sliunld  contimie  to  enjoy 
the  rii^ht  of  fisliin.y;  on  the  Cirand  Bank,  aiul  other  places  of  common 
iiirisdiction,  ami  have  the  liberty  of  tlshin;.;',  and  dryin.i;-  and  cnriiii;  their 
lish,  within  the  exclusive  llritish  jnrisiliction  ()n  the  North  American 
coasts,  to  which  they  had  been  accustomed  whilst  they  formed  a  part  of 
the  Hritish  nation.  This  stipulation  was  a  part  of  that  treaty  by  which 
Mis  Majesty  ackno\\leds4ed  the  I'nited  States  as  free,  sovereign,  and  in- 
pendent  States,  and  that  he  treated  with  them  as  such. 

"  It  conld  not  be  necessary  to  p-  ove  that  this  treaty  was  not,  in  its  gen- 
eral provisions,  one  of  those  win?  .,  by  the  common  unclerstanding  and 
usage  of  civili/ed  nations,  is  considered  as  annulled  by  a  subsecjuent 
war  between  the  same  parties.  'l"o  suppose  that  it  is,  would  imply  the 
inconsistency  and  absurdity  of  a  sovereign  and  indei>endent  .State,  liable 
to  forfeit  its  right  of  sovereignty  by  the  act  of  exercising  it  on  a  declara- 
tion of  war.  lUit  the  very  words  of  the  treaty  attested  that  the  sovereignty 
and  Independence  of  the  I'nited  States  were  not  considered  as  grants 
from  His  Majesty.  They  were  taken  aiul  expressed  as  existing  before 
the  treaty  was  made,  and  as  then  only  hrst  formally  recognized  by  Great 
Britain. 

"  J'lrcisi'/y  of  tite  sniiir  iiatmc  wric  the  lii^hts  and  /ibcr/irs  in  the 
fisheries.  They  were,  in  no  respect,  grants  from  the  King  of  Great 
Britain  to  the  Tnited  .States ;  but  the  acknowledgment  of  them  as 
rights  and  liberties  enjoyed  before  the  separation  of  the  two  coun- 
tries, and  whidi  it  was  mutually  agreed  should  continue  to  be  enjoyed 
under  the  new  relations  which  were  to  subsist  between  them,  constituted 
the  essence  of  the  article  concerning  the  fisheries.    The  very  peculiarity 


i?!*f 


I 


(^•tl  siiicL-  the 

London,  .Afr. 
It  in  Xurth 
lit'ir  sep.-ii'a- 
)ver(.i.i;tUies, 
1(1  Incii  tii- 
tisli  tinpirc. 
tiijovment ; 
tlKTjxJition 
lia\iii--  'lat- 

li'<l  tlirni  to 

JiiVL-Il   tllLIU 

liicli  the  IX'- 
Hidfd,  tliat 
litre,  in  se- 
ts of  uliicli 

III  express 
li.nlits  and 
tile  I'nited 
■  e to  enjoy 
I  common 
"ins  their 
American 
I  a  part  of 
l)y  which 
'1,  antl  in- 

in  its  gvn- 
(lins:  and 
hseqnent 
iiii)ly  the 
ite,  liable 
1  (leclara- 
'■ereignty 
^s  grants 
g  before 
1^}'  Great 

X  in  I  he 
)f  Great 
theni  as 
o  coim- 
enjoyed 
islitiited 
:uliarity 


of  the  stiiiulation  was  an  evidence  that  it  was  not,  on  eitlu'r  siile  under- 
stood or  intended  as  a  .urant  from  one  sovereign  State  t(j  anotiier.  1  lad 
it  been  so  imderslood,  neither  could  the  I'nited  States  have  claimed,  nor 
wonld  Great  Hritain  have  grantetl,  graluitoiisly,  any  such  concession. 
There  was  nothing,  eitlier  in  the  state  of  things,  or  in  the  disposition  of 
the  ])arties,  which  could  have  led  to  such  a  stipulation  on  the  i)art  (jf 
Great  Hritain,  as  on  tlic  ;^,ound  ol"  a  grant  witliout  an  c(|uivalent. 

"  If  the  stii)iilati<in  by  the  treaty  of  ijSj^  was  one  of  the  conditions  by 
which  His  Majesty  acknowledged  the  sovereignt\' and  independence  o( 
tile  United  States  ;  if  it  was  tiie  mere  recognition  of  rights  and  liberties 
l)reviously  existing  and  enjoyed,  it  was  neither  a  i)rivilege  .gratuitously 
granted,  nor  liable  to  He  forfeited  by  the  mere  existence  of  a  subsequent 
war.  If  it  was  not  f(jrfeited  by  the  war,  neither  could  it  be  impaired  by 
the  declaration  of  (ireat  Hritain  at  Gihent,  that  siietliil  not  intend  to  renew 
the  grant.  Where  tiiere  had  been  no  gratuitous  concession,  tiiere  could 
be  none  to  renew  ;  the  rights  and  liberties  of  the  United  Slates  c  'uld 

t  be  canceled  bv  tiie  declaration  of  the   Hritisii  intentic 


n( 


)ns. 


N'othuig 

could  ai)rogate  them  but  a  renunciation  by  the  United  .States  them- 
selves." 

Lawfencc's  Wlicatoti's  Intcniatioiial  Law,  pa^^c  463  ; 

See  also  Letters  of  John  Ailains,  \-ol.  x.  Works  of  John 


A(lain> 


)a<'es, 


97 


I  ^  I ,  I  ^.6.  1 


59,  354,  ami  403 


Opinion  C.  A.   Rodnex-  to   President   Monroe,  Nov. 


o> 


18 1  (S;   Alonroe  ^LSS.,  Department  of  State;  referretl 
to  in  I'^lliott's  Northeastern  J-'isheries,  paye  45. 

If  the  l^ritish  pretension  had  been  insisted  on  the  war 
would  ha\'e  been  continued,  as  James  Monroe's  instructions 
to  the  American  commissioners  were  imperative  that  "  the 
fishery  rights  of  American  citizens  must  not  be  discussed,  and 
if  the  British  demand  their  surrender  all  further  negotiations 
must  cease." 

Finall\-  the  commissioners,  without  inserting  an\-  provis- 
ion with  regard  to  the  fisheries,  signed  the  formal  treatx' 
known  as  the  treaty  of  Ghent.  The  first  article  of  this  treaty 
provided  that  "  all  territories,  places,  and  possessions  wliat- 
soever  taken  by  either  party  from  the  other  during  the  war 
should  be  restored  without  delay."  This  in  itself  was  an 
ample  refutation  of  the  British  claim.  The  fisheries  were  a 
valuable  "  possession."  If  tlie  British  took  them  from  us  by 
the  war,  they  were  obliged  by  the  letter  of  the  treaty  to  re- 
store them  to  us  without  delay. 


i6 

Tlic  war,  liowcvcr,  had  shown  Great  liritain  that  her  naval 
prestige  was  in  danijer,  and  that  the  chief  source  of  that  dan- 
<j[er  was  in  the  fisliin^f  towns  of  New  lMi|^huui.  I-'rom  that 
moment  liritish  statesmen  directed  their  energies  to  the  task 
of  discouraging  or  destro)'ing  the  fishing  industry  of  that  por- 
tion of  the  United  States. 

During  the  next  year  tlie  British  sloop-of-war  "  Jaseur  " 
sailed  along  the  northeastern  fishing  grounds,  and  notified 
all  American  fishing  vessels  to  not  come  within  sixty  miles  of 
the  shore.  The  liritish  Government,  on  being  notified  of  this 
action,  exj^ressed  disapproval  of  it,  but  so  many  other  anno}'- 
ances  were  heaped  on  our  fishermen  that  Richard  Rush  antl 
Albert  Gallatin  were  sent  to  luigland  to  make  a  new  and  per- 
manent con\  ention,  which  it  was  hoped  would  be  accejjtable 
to  l^nglantl  and  enable  our  fishermen  to  pursue  their  occupa- 
tion undisturbed. 

They  negotiated  the  Treat}-  of   i8 1 8,  Article  I.  of  which 

provides : — 

"  Whekkas  (litTereiices  Iiave  arisen  respecting;  the  lil)erty  claimed  by 
the  rnited  States  for  tlie  inlial)itants  tliereof,  to  take,  dry,  and  cnre  fish  on 
certain  coasts,  l)ays,  harl)ors,  and  creeks  of  His  Britannic  .Majesty's  do- 
minions in  America,  it  is  agreed  between  the  iiigli  contracting  parties 
tliat  tile  inlial)itants  of  the  said  United  .States  sliall  liave,  forever,  in  com- 
mon witli  tile  subjects  of  His  Britannic  .Maje.sty,  tiie  liberty  to  take  fish  of 
every  kind  on  tliat  part  of  the  soutiiern  coast  of  Newfoundland  which 
extends  from  Cape  Ray  to  the  Ramea  Islands ;  on  the  western  and 
northern  cnast  of  Newfoundland,  from  the  said  Cape  Ray  to  the  (Juir- 
pon  Islands;  on  the  shore  of  the  Magdalen  Islands;  and  also  on  the 
coasts,  bays,  harbors,  and  creeks,  from  Mount  joli,  on  the  southern 
coast  t)f  Labrador,  to  and  through  the  Straits  of  Helleisle,  and  thence 
northward,  indefinitely,  along  the  coast,  without  prejudice,  however,  to 
any  of  the  exclusive  rights  of  the  Hud.son's  Bay  Ctmipany ;  and  that  the 
American  fishermen  shall  also  have  liberty,  forever,  to  dry  and  cure  fish 
in  any  of  the  unsettled  bays,  harbors,  and  creeks  of  the  southern  part  of 
the  coast  of  Newfoundland  hereabove  described,  and  of  the  coast  of 
Labrador ;  but  so  soon  as  the  same  or  any  portion  thereof  shall  be  set- 
tled it  shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish  at 
such  portion  so  settled,  without  previous  agreement  for  such  purpose 
with  the  inhabitants,  proprietors,  or  possessors  of  the  ground  ;  and  the 
United  States  hereby  renounce,  forever,  any  liberty  heretofore  enjoyed 
or  claimed  by  the  inhabitants  thereof  to  take,  dry,  or  cure  fish  on  or 
within  three  marine  miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors 
of  His  Britannic  Majesty's  dominions  in  Ame.icanot  included  within  the 


VV-^J 


T 


her  iia\al 

that  dan- 

f'^oni  that 

0  the  task 
r  that  por- 

"Jascur" 
d  notified 
y  miles  of 
ed  of  this 
cr  aiino}'- 
R.iish  and 
'  and  per- 
cceptable 
r  occupa- 

of  which 

lainied   l)y 
lire  fisli  on 
ijesty's  clo- 
iig  parties 
er,  in  com- 
ake  fish  of 
ind  which 
stern  and 
tile  (Juir- 
Iso  on  the 
southern 
lid  tlience 
)\vever,  to 
id  tiiatthe 

1  cure  fisii 
rn  part  of 

coast  of 
ill  be  set- 
ire  fish  at 
1  purpose 
;  and  the 
;  enjojed 
sh  on  or 
"  harbors 
within  the 


17 

abdv.-iiK'iUioiied  limits  :  /Yor/'i/iuf.  //o.  .:;■/:  That  tlic  AitHTJcin  lislicr- 
iiieii  siiail  !)e  admitted  to  i-ntcr  such  hays  or  liailxus  tor  the  purpose  o( 
siielter  and  of  repairinj;  dama.Lrcs  th(i\-iu,  of  purrhasiun  wood,  and  of 
oi)tainiiij;  water,  and  fur  no  otli-r  puiposr  whatever,  lint  ilnv  shall  be 
under  siicli  restrictions  as  may  l)e  necessary  to  prevent  their  takinj;,  dry- 
in!4,  or  curini^  tish  tlierein,  or  in  any  othsr  manner  wiiatever  abiisiui;-  the 
privilej;es  iier(l)\  reserved  to  tiiem." 

H)'  this  treat)-  the  joint  ownership  or  tciianc)'  in  coininoii  of 
the  Unitetl  States  was  rec(\Ljni/.etl  and  extended  "  forever,"  in 
return  for  certain  restrictions  of  our  ri-dits.  Tliis  was  a  <'en- 
nine  triumph  of  American  diplomac}-. 

In  a  letter  addressed  to  John  Quincy  Adams,  Secretar\-  of 
State,  on  October  20th,  i.SiS.  Messrs.  Gallatin  aiul  Rush 
said  :  — 

"Tile  most  ditlicult  part  of  tiie  ne.notiation  related  to  the  permanence 
of  the  right.  To  oljtain  tlie  insertion  in  tiie  Ixxly  of  tiie  convention  of  a 
provision  declaring  that  that  rigiit  siiould  not  be  abrogated  l)y  war  was 
impracticable.  All  that  could  lie  done  was  to  express  the  ;irticie  in  such 
manner  as  would  not  render  tiie  right  liable  to  be  thus  abrogated.  The 
words  '  for  ever  '  were  inserted  for  that  iinrpose.  The  insertion  of  the 
words  '  for  ever  '  was  strenuously  resisted.  We  declared  that  we  would 
not  agree  to  any  article  on  the  subject  unless  the  words  were  ])reserved. 
or  in  case  they  should  enter  on  the  procotol  a  declaration  impairing  their 
etTect.  It  will  also  be  perceived  tiiat  we  insisted  on  the  clause  by  which 
the  United  .States  renounce  their  right  to  the  fisheries  relincpiished  by 
the  convention,  that  clause  having  been  omitted  in  the  first  Hritish  coun- 
ter-project. We  insisted  on  it  with  tiie  view,  first,  of  pre\enting  any 
implication  tliat  the  fisheries  secured  to  us  were  a  new  grant,  and  of 
placing  the  iiermanence  of  the  rights  .secured  and  of  those  renounced 
lirecisely  c.n  the  same  footing  ;  second,  of  its  being  e.xpressly  stated  that 
our  renunciation  extended  only  to  the  distance  of  three  miles  from  the 
coasts.  This  last  point  was  the  more  important,  as  with  the  exce|)tion 
of  the  fishing  in  open  boats  in  certain  harbors,  it  appeared  that  the  fish- 
ing ground  on  the  whole  coast  of  Nova  .Scotia  is  more  than  three  miles 
from  the  shores.  It  is  in  that  point  of  view  that  the  privilege  of  enter- 
ing the  ports  for  shelter  is  useful,  and  it  is  hoped  that  with  that  provision 
a  considerable  portion  of  the  actual  fisheries  on  that  coast  (of  Xova 
Scotia)  will,  notwithstanding  the  renunciation,  be  preserved." 

John  Quincy  Adams,  Secretary  of  State  durinij  this  peri(  d, 
referring  to  the  Treaty,  said : — 

"We  have  gained  by  the  convention  of  1818  an  adjustment  of  the 
contest  of  our  whole  principle.  The  convention  restricts  the  liberties  in 
some  small  degree,  but  it  enlarges  tliem  probably  in  a  degree  not  less 


IS 


iiscl'iil.  It  has  si'Ciiitd  llif  ulioir  (  n.ist  tisluTv  ol'  i-\ I'l'v  |>art  of  tlif  liiit- 
isli  (luininidii^,  i-xccpt  within  ihni'  niaiiiic  miles  n(  thi-  shoic-s,  with  Ihc 
lihcTtv-  (ilusini;  all  the  iiai  Imus  I'di' slu-ltrr,  U>v  icpairiii^  (lainaL^cs,  and  tor 
obtainin.i;  uimhI  ami  water.  It  has  se(  nreil  the  uhitli'  paiticipatiDM  in 
the  1  .aliiatliir  fisheries,  tlu'  most  important  part  of  the  whole,  and  of 
which  il  ua-.  at  <  ihent  pecnliarly  the  intention  of  the  I'.ritisli  ( iovernnieiit 
at  all  evt-nts  to  deprive  ns.  The'  (onveiilion  has  also  secured  to  ns  the 
rij^ht  of  dr\in.i;  and  <  urin^  llie  lish  on  a  part  of  the  island  of  Xewfoimd- 
laml,  which  iiad  not  been  enjoyed  imder  the  tnaty  ol  ijN;,;  il  has  nar- 
rowed down  the  i)reteiisions  ol  excUisivo  tirrilorial  Jiiristlictioii  witli 
refeii.iice  to  those  lisheiies  to  three  marine  miles  from  tiie  shores.  Ipou 
the  whole  I  consider  this  interest  as  si'cnred  by  the  convention  of  iSiS 
in  a  manner  as  ad\antai;eous  as  it  iiail  been  1)\  tlie  treaty  of  ijN.v" 

Adams  and  Russell,  i)a<^(j  241. 

ll(Hi.  Charles  Levi  W'oodJJiiry,  in  an  open  letter  mi  the  fisli- 
■crics  dispute,  piiblislieil  in  the  American  Law  Re\ieu  ol 
Ma\'-Jtme,  1S87,  paoe  4..1.2,  s])eakino;  nf  these   riohts,  sa\  s : — 

"The  ri;.^hts,  elaborately  defined  by  treaty,  which  we  possess  aiont^ 
tile  coasts  and  in  the  bays,  harbors,  and  jxirts  of  liritish  North  America, 
belon.y;  as  fnlly  to  the  I'l'iiteil  .St.ites  as  does  the  Capitol  or  the  Wiiite 
House  at  \Vashlni;ton.  They  are  the  trophies  of  the  centuries  of  priva- 
tion, toil,  and  bloodshed  throiij;h  wliich  our  colonial  aiK  estors  secured 
themselves  from  forei.nn  inlliiences. 

"'{"here  is  not  a  foot  of  Hritish  North  .\merica,  from  Lake  Superior  to 
the  Atlantic,  to  the  winnin,;;-  of  which  from  l'"rance  our  American  ances- 
tors did  not  bear  their  share  in  arms.  'I'lie  memories  of  Lake  <  ieori^c, 
l''i"ontenac,  Detroit,  (Juebec.  and  Louisbouri;  are  our  heirlooms  as  well 
.as  lMij;land's.  (Jreat  liritain's  fishini;  ris;hts,  in  or  .idjacent  to  what  is 
now  British  N\)rth  .\merica,  were  nevi^r  exclusive.  Whatever  pertained 
to  the  ,i;reat  conunon  of  fisheries,  whatever  emiretl  from  the  con(]uest  ot 
'Canada,  equally  ]iert.iineil  and  emired  to  us  as  to  her.  The  treaty  ot 
17S3  re,i;iilate<.l  nuitu.il,  joint,  and  several  uses  in  a  part  of  these  old  com- 
mon or  accjuired  lisliery  rij^hts,  and  that  of  iSiS  was  a  partial  re-arranye- 
nient  thereof.  In  said  treaties,  no  pretension  can  be  found  that  Great 
liritain  then  or  ever  before  had  any  e.\clusi\e  ownership  over  the  fisb.- 
eries  of  the  Northeast." 

It  is  to  be  noticed  that  the  Treaty  of  1783  uses  the  words 
"  rio'ht "  and  "lil)crt\'"  apparenth'  as  of  different  meanini^. 
■"  Rioht "  is  used  in  one  clause,  "  libertv' "  in  the  other.  Jolin 
Adams  explains  how  the  word  libei'ty  got  into  the  Treaty  of 
1783  :  "  The  word  n<^'/i/  was  in  the  article  as  agreed  to  by  the 
liriti.sh  ministers,  btit  the\"  afterwards  recjuestcd  that  the  woitl 
liberty  might  be   substituted   instead    of  riglit.     The}'  said   it 


of  llic  Mrit- 
■fs,  with  tin- 
Kfs,  and  lor 
iiipation  in 
lole,  and  of 
iovcrnnKiit 
■d  to  lis  Hie 
■N'cu  luinid- 
il  lias  iiai- 
ictioii  Willi 

IX-S.        I'lKJll 

inn  of   iSiS 
ITS;." 


the  fish- 

,  sa\s  ; — 

"■•'ss  aliiiiL; 
I  .Aim-iica, 
tile  Wiiiie 
'  of  prixa- 
s  secured 

iiperior  to 
an  ancL's- 
'  ( ieori^f, 
is  as  well 
<>  what  is 
IKTtained 
i(]uesl  ot 
treaty  ot 
old  coni- 
■arrange- 
at  Great 
the  llsli- 

worcis 
calling-. 
Jolin 
L-at)'  of 
b\-  the 
c  word 
said   it 


J9 

aiiioimttfl  to  the  same  thin-;-,  for  liberty  was  ri^ht.and  |)iivilct;c 
was  rij^ht  ;  hut  the  word  ;/>/;/  mi<;lit  he  more  impleasin^r  to 
the  people  of  I'ji.i^laiid  than  liberty;  and  wc  did  not  think  it 
iiecessar)-  to  contend  for  a  word." 

John    Adams   to   Win.   Thomas,   AiiL,nist    loth,    1.S22, 
Adams'  W'oiks,  vol.  x.,  [)a_Lje  403. 

The  charters  of  Massachusetts  Ba\-  of  1627  and  1691  had 
used  "  liberty"  to  secure  the  ri<;ht  to  fish,  and  there  "liberty" 
had,  so  far  as  lanj^aia^e  could,  effectually  and  permanently 
secured  the  ri<^dit  to  fish,  as  if  the  word  "rii.rlit"  jiad  been 
used.  The  letter  of  John  Adams  shows  why  and  with  what 
understandinj,^  "  liljcrt)-"  was  u.sed  in  the  Treaty  of  17.S3,  and 
therefore  no  distinction  can  he  drawn  as  to  the  meanini;  of 
"  rit,dit"  ami  "  liberty"  in  the  Treat)'  of  1783, 

The  l^ritish  contention  as  to  the  abioy^ation  of  oin-  fishinj^ 
pri\ile<4es  by  the  War  of  i,Si2  was  limited  durin<,f  the  ncL^oti- 
ation  of  the  Treaty  of  1818  to  our  "  fishiii<^r  jihcrty,"  and  did 
not  extend  to  our  "  fishinj^f  ri,L;hts."  This  accounts  for  no  ref- 
erence to  <uir  "fishin^t;-  rights"  in  the  Treaty  of  1818. 

Lord  Batluirst,  in  his  letter  of  October  30th,  1815,  to  John 
Ouincy  Adams,  admitted  the  f<;rce  of  the  ar<;unient  that  the 
Treaty  of  1783  was  the  partition  of  an  empire,  but  endeavored 
to  draw  a  distinction  h(>tween  "  r/i,'7//.v  "  and  "  ///hr/us,"  admit- 
lin--  that  our  fishing  "  r/o/z/s  "  were  not  abrogated  by  tlie  War 
of  18 1  2,  and  claimed  that  the  ''  lihcrty  to  fish  "  was  different 
from  the  "  right  to  fish,"  and  was  annulled  by  the  War  of  181 2, 

"  If  these  liberties,"  he  says,  "thus  granted  were  to  he  perpetual  and 
indefeasible  as  the  rights  previously  recognized,  it  is  difficult  to  conceive 
that  the  i)leninoteiiliaries  of  the  United  States  would  have  admitted  a 
variation  of  language  ;  and  above  all.  that  they  should  have  adniiUed  so 
strange  a  restriction  of  a  perpetual  and  indefeasible  right  as  that  with 
which  the  article  concludes,  which  leaves  ;i  right  so  practical  and  so  bene- 
(icial  as  this  is  iidmilted  to  be,  dei)endent  on  the  will  of  Hrilish  subjects, 
in  their  character  as  inhabitants,  ])roprieto.s.  or  possessors  of  the  soil 
to  prohibit  its  exercise  altogether.  It  is  surely  obvious  that  the  word 
'/vX'/'/'  is  throughout  the  Treaty  used  as  applicable  to  what  the  I'nited 
States  were  to  enjoy  by  virtue  of  a  recognized  iiuiepeiuleiice,  and  tiie 
word  '  /t7>ir/r  '  to  what  they  were  to  enj(jy  as  concessions  strictly  de- 
])endent  on  the  treaty  itself." 

See  Annals  of  Congress,  1 5th  Cong.,  2d  Sess.,  p.  1463. 


h 


III  I 

'I: 
i'- 


20 

The  claim  son'ously  presented  by  tin-  Pritish  Conunission- 
crs  tlurin^f  the  iiejj;()tiati(ni  of  the  'I'lt'aty  of  (iliiiil  had  not  in 
fact  '^onc  any  further. 

Memoirs  J.  (J.  Aiiams,  vol.  2,  pai^e  6. 

John  Qnincy  Adams,  in  liis  repl)'  to  Lord  Hathurst,  com- 
pletely answered  the  position  taken  by  the  liritisii  (]o\ern- 
ment  and  established  that  the  liberty  to  fish,  "  far  from  incliid- 
in<^  in  itself  either  limitation  of  time  or  precariousne.vs  of  ten- 
ure, is  essentiall)'  as  permanent  as  that  of  rii^iit."      I  le  saitl : — 

"'riiat,  pri'vioiis  to  the  iiultpLMulciicu  of  llu'  I'liitfil  Stairs,  tluif  peo- 
ple, as  Hritisli  siil)iL'cts,  liad  cMijoyecl  all  tlic  ris^/i/s  ami  /ilx'i/irs  in  tliu 
fislicrii'S  wliicli  Iniiii  tlu-siihJL-ct  of  tia- pri'SfiildisLiwssioii ;  and  that,  uIkmi 
the  separation  of  tlie  two  parts  of  tlie  nation  was  consunnnatid  l)y  a 
inutnal  o impact,  the  treaty  of  pe.ice  defnied  tiie  riii/i/s  and  /ibntics 
whicli,  by  tlie  stii)ulation  of  both  parties,  the  t'niled  .States  in  their  new 
character  were  to  enjoy,  by  tiu'  acknowledjLiincnt  of  tlie  inde|)endence 
of  tile  United  .Stales,  Great  Ihitain  l)unnd  lierseif  to  treat  tluin,  llunce- 
forward,  as  a  nation  possessed  of  all  the  preronatives  and  attributes  of 
sovereii.;;n  power.  The  jieople  of  the  I'nited  .States  were,  thencefor- 
ward, neither  bound  to  alle.i;iaiice  to  tiie  sovereit;ii  of  (ireat  ISritain,  nor 
entitled  to  his  i)r()tection  in  the  enjoyment  of  any  of  their  ri}.;hts  as  his 
subjects.  Their  rights  and  their  dnties  as  members  of  a  State  were 
defined  and  re;;ulatetl  by  their  own  constitutions  and  forms  of  j;()vern- 
ment.  lUit  there  were  certain  riti/i/s  and  libctiics  which  had  been  en- 
joyed by  both  ]>arts  of  the  nation  while  subjects  of  tiie  same  sovereij;ii, 
which  it  was  mutually  aj;reed  they  should  conlinue  to  enjoy  unmolested; 
and,  anionjj;  them,  were  the  rights  ami  tibrrtics  in  those  I'lsheries.  The 
fisheries  on  the  banks  of  Xewfoimdland,  as  well  in  the  open  seas  as  in 
the  iieis^hborinji  bays,  t;ulfs,  and  aloiii;-  tiie  coasts  of  Nova  Scotia  and 
Labrador  were,  by  tiu'  dispensations  ami  the  laws  of  nature,  in  substance, 
only  difierent  jiarts  of  one  fishery.  Those  of  the  open  sea  were  enjoyed 
not  as  a  common  and  universal  ri<;ht  of  all  nations;  since  tiie  exclusion 
frt)m  them  of  l'"raiice  and  .Spain,  in  whole  or  in  part,  had  been  expressly 
stipulated  by  those  natiijiis,  and  no  other  nation  had,  in  fact,  participated 
in  them.  It  was,  witli  some  exceptions,  an  exclusive  possession  of  the 
IJritish  nation  ;  and  in  the  treaty  of  separation  it  was  aj^reed  that  tile 
riglits  and  tibcrties  in  them  should  contimie  to  be  enjoyed  by  that  part  of 
the  nation  which  constituted  the  Lulled  .States  ;  that  it  should  not  lie  a 
several,  but  as,  between  Cireat  Britain  and  the  Lniled  .States,  a  common 
fishery.  It  was  necessary  for  the  enjoyment  of  this  fishery,  to  exercise 
it  in  conformity  to  the  liabits  of  the  species  of  j^anie  of  which  it 
consisted.  The  places  fre(|uenled  by  the  fish  were  those  to  which  the 
fishermen  were  oblii;ed  to  resort,  and  these  occasionally  brought  them 
to  the  borders  of  the  British  territorial  jurisdiction.     It  was  also  iieces- 


21 

s.iry,  for  tlu'  iirosiciition  of  a  i)ait  of  this  lisliciy,  lliiit  tin-  fish,  when 
caiijilit,  slidiiUl  hi-  imiiudiati'ly  (iiifd  and  dritil,  whicli  could  only  ho 
(lone  on  the  rocks  or  shores  adjoining  iheplacis  where  tiny  werecauKlit ; 
the  access  to  these  rocks  and  shores,  for  those  purposes,  was  secured  to 
the  people  ot  the  Tnitcd  States,  ,is  incidental  and  necessary  to  tiie  eii- 
joynient  ol  the  tisherv  ;  it  was  little  niort  than  an  access  to  naked  rocks 
and  desolate  sands  ;  hnt  it  was  as  pernianently  secured  as  the  ri^l't  to 
the  tishery  itself".  No  limit  ition  w.is  assigned  of  time.  Trovisioii  was 
made  Inr  the  proprietary  rights  wlii'h  mij;ht  at  a  distant  and  hilure  pe- 
riod arise  by  the  settlement  of  |)Iaces  tlien  nninhahited  ;  but  no  otiier 
limitation  \\  >  e.xpressed  or  indicatid  by  the  ti-rms  of  tlx-  treaty,  ami  no 
other  c;m,  either  from  the  letter  or  spirit  of  the  article  be  inferred. 

"  It  was  precisely  because  they  mi^ht  have  lost  their  portion  of  tliis 
joint  national  i)roperty,  to  the  ac<|uisition  of  which  they  hat!  contributed 
more  than  their  share,  unless  a  formal  article  of  the  treaty  should  secure 
it  to  tiiiin,  that  the  article  was  introduced,  liy  the  Ihitish  nnmicipal 
laws,  which  were  the  laws  of  both  nations,  the  property  of  a  lisher/  is 
not  nect-ssarily  in  tiie  proprietor  of  the  soil  wlieie  it  is  situated.  The  soil 
ma\-  beloni^  to  one  individual,  and  tlu-  lishery  to  another.  The  ri<;lit  to 
tile  soil  may  be  e.xclusive,  while  the  lishery  may  be  frei-,  or  held  in  com- 
mon. .And  thus,  while  in  the  partition  of  the  national  possessions  in 
North  America,  stipulated  by  the  treaty  of  178;,,  the  jurisdiction  over  the 
shores  washed  by  the  waters  where  this  fishery  was  placed  was  reserved 
to  (ileal  Britain,  the  fisheries  themselves,  and  t  lie  tueoiiimodtitioiis  essen- 
tia/ to  their proseeiition,  weir,  />_}'  uiiitiial  eoinpaet,  aiireed  to  be  eontinned 
ill  eoiiiiiioii." 

AniiaLs  of  Congfcss,  I5tli  Con^^.,  2d  Sess.,  p.  1466. 


As  our  "rii^hts"  iiiulcr  the-  Treaty  of  1783  wcfc  not  qucs- 
tionctl,  no  fcfciLncc  whatever  was  thefefofo  made  to  them  in 
the  Treaty  of  1818,  and  the  Treaty  of  1818  was  intended  to 
operate  ujjon  the  "  Hbetty  "  to  take  fish  alone.  We  arc  con- 
sequently left  in  possession,  unaffected  by  the  Treaty  of  181 8, 
of  all  "riolits"  we  had  under  the  Treaty  of  1783  to  fish  on 
the  Gratid  Bank,  on  all  the  other  banks  of  Newfoundland, 
also  in  the  Gulf  of  St.  L.nvrence,  and  elsewhere  in  the  sea 
where  we  used  any  time  previously  to  fish. 

"  Sir,  this  treaty  operates  upon  the  liberty  alone,"  said  the  Hon.  Zeno 
Scudder,  referring  to  the  Treaty  of  iSiS,  in  the  House  of  Representa- 
tives, August  i2tli,  1.S52,  "which  Lord  Bathurst  contended  had  been 
affected  by  the  war  ;  but  not  one  wijrd  is  said  or  contained  in  it  relative 
to  the  right  of  fishery,  which  Lord  Bathurst  admitted  was  not  affected 
by  the  war.  Now,  sir,  let  me  ask  this  committee  and  the  country  to  refer 
to  the  Treaty  of  1783.  and  see  in  what  part  of  these  fisheries  we  had  a 


Ml^hi 


I       I  !' 
1       I    ■ 


I  II 


j!!i':i 


;v; /,/ instead  .a  libniy.  Sir,  aiiioiij;  oilier  plat<.s  we  liad  and  liave  still 
a  title  ofri.^iit  in  tlie  wiiole  of  tiie  (lull Of  St.  Laurence.  Let  the  Mririsli 
ministry  or  any  other  power  on  earth  construe  the  Treaty  ol"  i.SiS  as  they 
will,  respectiiiji  the  liberty  on  the  hay,  creek,  and  harbor,  still  it  cannot 
afiect  the  title  of  ritiht  in  the  (iulf  of  .St.  Lawrence,  which  has  ne\er 
been  inodilied  or  altered  since  the  Treaty  of  17S3,  and  the  subseiiuent 
expression  of  Lord  liathnrst,  that  it  coiiltl  not  be  modified  or  altered.  I 
will  leave  it  to  the  fishermen  of  the  country  to  detine  the  extent  of  llie 
Gulf  of  St.  Lawrence  to  contain,  besides  the  .Ma.i^tlalen  Islands  and 
Prince  Kdward  Island,  many  otlier  important  coasts,  shores,  ^tc,  wiiicli 
are  re.sorted  t(j  tor  oiir  fishini;  purposes." 

Con<^.  Globe,  32d  Coiij^.,  ist  Scss..  \ol.  25.  p.  927. 

It  is  thcfcforc  important  to  bear  in  niind  that  at  the  ncgo- 
tiatioii  of  the  Treaty  of  1818  Great  Britain  expressly  acknoul- 
edcred  our  fisliin":  "  rii/lUs  "  were  not  abrotrated  b\-  the  War 
of  18 1 2,  that  our  nolus  recognized  and  secured  under  the 
Treaty  of  1783  were  not  affected  or  intendetl  to  be  affected  by 
the  Treaty  of  181 8,  the  United  States  never  admitted  that  the 
"Hbert\-  to  fish  "  was  lost  by  the  War  of  [812.  and  that  b\- ac- 
ceptance from  us  of  a  renunciation  of  a  [)ortion  of  the  "libertx"" 
to  take  fisli  the  Britisli  Go\ernment  implicitly  acknowledged 
that  our  fishino-  liberties  imder  the  Treat}-  of  1783  were  not 
abrogated  by  the  War  of  1812. 

John  Adams,  speaking  of  the  Treaty  of  1818,  said  : — 

"  The  L'liited  .States  liav<.-  renounced  forever  that  jiart  of  the  tishiiii; 
liberties  which  they  had  enjoyed,  or  claimed,  in  certain  jiarts  of  the  ex- 
clusive jurisdiction  of  the  Lritisii  Provinces  and  within  three  marine  miles 
of  the  shores.  The  Inst  arliile  of  liiis  convention  atVortis  a  sii^nal  testimo- 
nial of  the  correctness  of  the  princii)le  assimieil  b}-  the  American  pleni- 
potentiaries at  ("dieiit  for  as  by  acceptinj;  Ihc  express  rrmiiniiido'i  by  the 
I'uited  Stales  of  a  small  poiiimi  0/  the  pi  ivile<^e  in  q/iesfioii.  aint  hy  eon- 
finiiini;  umi  entar(;iii,i^  all  the  reiiiaiiiJer  0/  the  prizilei^e  foreier,  the 
Brilish  Governtneut  have  iniplieilly  aekiioretedi^ed  that  the  lit'erties  of  the 
third  arliete  of  the  Treaty  of  ijS:;  liave  not  been  abroj^ixted  by  the  r.ifr." 

The  treaty  of  18 18  worked  well  for  about  twent\-  years, 
ui;til  disturbing  elements  arose.  A  new  generation  of  Cana- 
dians had  grown  up,  knowing  or  caring  notliing  for  the  treaty 
of  1783,  or  of  our  proprietary  rights  or  joint  ownersliip  in 
the  fislicries.  The  mackerel  fisher\-  in  the  Gulf  of  .St.  Law- 
rence had  been  discovered  to  be  of  great  value.  The  various 
non-intercourse  acts  had  been   repealed,  and  the  markets  of 


-^■J 


id  liave  still 
i  the  Hritish 
■"^iSas  they 
ill  it  cannot 
lias  never 
snl)se(]nent 
alu-red.  I 
^ttiit  (,r  the 
slancis  and 
<S:c..  wiiicl) 

927. 

lie   nci^o- 
acknow  1- 

the  Wai- 
lulcr  tlic 
octed  by 

tliat  tlic 
at  by  ac- 

liberty" 
\vlcdy;cd 
kere  not 


le  Jishinjj 
r  the  ex- 
ine  miles 
I  testinio- 
an  |)k-ni- 
o'l  Oy  the 
if  />r  cou- 
rier, the 
ics  of  the 
e  xcai-y 

'  \car.s, 
r  Cana- 
;  treaty 
^hip  in 
L.  Law- 
rarioiis 
kets  of 


23 

tlie  United  States  were  open  under  certain  I'cstrictions  to 
Canadian  enterprise.  If  those  restrictions  could  be  entirely 
reinoxed  Canada  would  be  ininiediately  and  immeasurably 
benefited,  and  it  was  tliou,L;"ht  that  the  ([uickest  and  surest 
\\a\'  to  obtain  this  result  would  be  to  harass  American  fisher- 
men until  the}'  crieil  out  for  relief 

To  furnish  the  ])retext  the  pretension  was  re\i\'ed  that  tlie 
entire  fishins.^  rij^hts  and  liberties  of  the  United  States  under 
the  Treat)-  of  1783  were  annulled  b\'  the  war  of  [812,  and  the 
annoimcenitMit  was  made  that  American  fishermen  hail  no 
rii^hts  except  those  which  were  i^ranted  them  b\'  the  Treaty  ot 
1818,  and  that  the  terms  of  that  treat\-  would  be  literally  exe- 
cuteil  until  such  concessions  were  made  as  Canada  desiretl. 
I'A'crx-thiuL;"  possible  lo  harass  and  amun-  our  fishernieii  was 
the  policy  adopted  and  pei'sistentl)'  i)ursued.  The  spirit  in 
which  Canada  has  always  dealt  with  our  treat}'  rights  is  well 
illustrated  b}'  what  was  latel}'  said  by  Mr.  Davies,  of  Prince 
Edward's   Island,  a  member  of  the  Canadian  Parliament,  w  ith 


reference  to  the   recent  course   of  Canada 


Til 


e\'  were  not 


satisfied  w  ith  puttini;"  a  consti'uctioii  upon  the  treat}',  and  then 
carr\'inL''  out  that  construction  in  a  firm  and  rea  ■onable  wa\'. 


it    were    determined    that    the   custom  laws   c 


A  il 


us  countr\' 


hould  be  tlra'*'ued  in   to    harass,  to   iri'itate   and   wiirr\',  and 


dri\'e  to  desperat 


ion 


the  American   fishermen,  as   it  did  dri\e 


them  to   desperation."     This   proL;rannne,  thouL;h  carried  out 
with  \ar}'inn"  se\erit\",  and  after  Ioul;'  periods  of  intermission. 


resulted   in   the   reci|)r>)cit\'  treat\' ot    li 


'd4- 


This  triuinoh  of 


British  diplomac}' atlmitted  into  the  United  .Stales  free  of  duty 
ever}'thini;  w  hich  Canada  had  to  sell,  and  admitted  into  Canada 
free  of  dut}'  onl}'  the  articles  which  she  ]:)roduced  herself      It 


came  to  an   va^^X,  b\'  notice  from  the  United  Stat 


es,  m  1 


866. 


Th 


e   ne 


xt  agreement — the  treat\'  of  W'ashinijton- 


-was  ne- 


rotiated  in  1871  ;  but  the  fisheries  clauses  o'i  this  tieat\'  were 


also  annulled  b}'  notice  from  the  United  States,  and  expired 
on  Jul}'  1st,  1885,  leaxint;-  the  twent}'-ninth  or  transportation 
clause  in  force. 


The  rights,  therefore,   of  the  United  .State 


S     111 


the   Xt)rth 


Atlantic  fisheries  at  this  date  are  to  be  measured  b}'  the  pro 


I  ,'■ 


24 

visions  of  the  treaties  of  17S3  ami  of  iSl<S,  aiul  by  tlie  addi- 
tional pri\ilet;es  derived  under  the  concurrent  action  in  1830 
of  Great  liritain  and  the  United  States  in  annullin<^  their  re- 
sDCCtive  non-intercourse  laws  as  to  the  liritish  colonies  in 
North  America,  and  untler  the  twenty-nintli  clause  oftheTreaty 
of  1 87 1.  The\'  are  not  fishery  privileges  of  one  nation  in  the 
jurisdictional  waters  of  another,  but  are  rii^hts  in  the  nature 
of  a  joint  ownership,  rights  common  with  the  Canadians  and 
fully  as  great  and  tlie  same  as  tliose  of  Canada  itself  They 
were  \'ested  in  the  United  States  on  the  same  foundation  and 
at  the  same  time  as  our  inclependence  and  our  territorial  sov- 
ereignt)',  and  the\-  are  rights  existing  in  the  United  States 
without  any  corresponding  or  reciprocal  rights  in  l^ritish 
subjects  on  our  coast. 

The  fisheries  are  not  "  Canadian."  Tiiey  are  "  our  fisher- 
ies "  (to  use  the  cxpiession  of  Thomas  Jefferson)  as  much  as 
those  of  Canada,  and  should  be  designated  as  the  North 
Atlantic  or  Northeastern  or  the  American  Fisheries,  and  not  by 
the  term  "  Canadian  "  or  any  word  that  would  imply  an  exclu- 
si\-e  ownership  or  sovereignty  of  Canada  with  regard  to  t''>em. 


I   1 


111  iulditioii  to  the  proprietary  rijylits  possessed 
by  the  United  States  in  the  Nortli  Atlantic 
flslieries,  tlie  liHhiiij>^  vessels  of  the  United 
States,  under  the  concurrent  action  of  the  two 
countries  in  IHJJO  and  under  the  twenty-ninth 
clause  of  the  treaty  of  IcSTl,  are  entitled  to 
unrestricted  commercial  and  transportation 
privileges  to  the  sanu^  extent  and  in  the  same 
manner  as  those  engaged  in  any  other  business. 


Wiien  the  treaties  of  17S3  and  1818  were  signed,  foreign 
nations  were  prohibitetl  fiom  intercourse  b\'  sea  with  the  col- 
onies of  Great  liritain,  and  the  rights  acknowledged  to  be 
in  the  United  States  under  these  treaties  being  distincti\el\- 
fishery  rights,  and  not  commercial  rights,  conferretl  no  i-ight 
in  the  United  States  to  trade  with  l^ritish  North  America. 

"The  policy  first  expressed  by  tlie  iict  of  12  Car.,  II.  had  been  to  pro- 
hibit foreign  nations  from  iiUcrconrse  by  sea  with  her  colonies,  either  to 


25 

import  imi)  or  export  from  tliem  in  tlic-ir  vessels.  Tliis  policy  was  in  lorce 
when  the  treaty  of  17S;,  was  made.  Tlie  ri^lits  of  tlie  I'nitecl  .States,  tliere- 
iii  ackiKjwIedsetl,  to  use  the  jx.rts,  creeks,  and  sliores  for  tlie  purj^ose  of 
its  fisiiery  conferred  no  ri.ij;lit  to  trade  with  IJritisli  North  America,  in 
iSiS  tlie  laws  of  tlie  Tnited  States  also  iirohihited  British  vessels  from  im- 
portinji  from  or  e.\iK>rtinij  to  the  cohjiiies  from  the  ports  of  the  Tnited 
States,  and  continued  so  to  prohiliit  them  lout;  after  the  treaty  of  iSiS." 

Letter  of  Chas.   Levi  W'oodljiirx'  to  Senator  Morsian 
American  Law  Rev.,  \-ol.  xxi.  p.  432. 

In  a  decision  tnider  the  treaty  in  the  vice-admiralty  court 
in  1.S06  (the  "  Fame,"  Stewart'.s  Rep.,  95),  it  wa.s  .said  that  al- 
thoii<,di  American  vessel.s  could  .supply  tlieir  own  fishing  vessels 
with  necessaries  and  enter  an  iniinhabited  port  in  the  course  of 
such  trading,  the  Treaty  of  1783  gave  no  authority  to  trade  with 
the  shore,  so  tliat  the  words  "for  no  other  purjjo.se  whatever" 
in  the  Treaty  of  1818  were  merely  declaratory  of  the  then  ex- 
i.sting  relations  between  the  two  countries  so  far  as  the  three- 
mile  limit  was  concerned,  a  prohibition  of  all  commercial 
and  other  privileges  beyond  those  expressed. 

By  the  concurrent  action  of  Great  Britain  and  the  United 
States  in  1830  the  prohibition  of  commercial  intercourse  be- 
tween the  United  States  and  the  colonies  of  Great  Britain  was 
annulled. 

"  In  1825,  after  several  efforts,  tlie  le.!.;islatures  of  the  two  governments 
bej^aii  to  open  trade,  and  the  act  of  Charles  IF.  was  suhseciiiently  re- 
pealed. In  1.S30  the  United  States  and  (neat  Britain  dr()p|)ed  their  re- 
sjiective  noniiitercoiirse  laws  as  to  Hritish  North  America,  and  opened 
their  ports  to  each  other,  upon  heiii.n  salislietl  that  neither  imposed  on 
the  other's  vessels  'any  restrictions  or  discriminations.' 

"'His  Majesty  declares,' says  Mr.  .Secretary  Huller,  November  6th, 
1830,  'that  the  slii|is  of  and  belonyini;-  to  the  I'nited  States  of  America 
may  import  from  the  I'nited  States  aforesaid  int(j  the  Hritish  i)ossessions 
abroad  j>oods  the  produce  of  those  States,  and  may  export  snoods  from 
the  l?ritish  po.ssessions  abroail  to  be  carried  to  any  foreit;n  country 
whatever.' 

"General  Jackson's  liioclamation,  October  5tli,  iS^o,  says:  'Hritish 
vessels  and  their  cargoes  are  admitted  to  an  entry  in  the  ports  of  the 
I'nited  .States  from  the  islands,  provinces,  and  colonies  of  Cireat  Hrit.iin  on 
or  near  the  American  continent  and  north  or  east  of  the  I'nited  States.' 

"Thus  was  the  right  of  the  vessels  of  each  to  the  privileges  of  foreign 

commerce  in  the  ])orls  of  the  other  established  without  any  class  reslric- 

•tions.     Buying  and  selling  I)ait,  like  tlie  importation  or  exportation  of  it. 


26 

arc  coninieivial  transactions,  and  tlicrefore,  l)y  the  plc-di^vd  failli  <it"  tlu- 
proclamation  of  iS^o  ojjcn  to  (~oninu;rce  l)y  tlic  wsscls  of  (.-iicii  countiy."' 

Letter    Clias.   Levi    \Vootlbiir\-,    Am.    Law    Rcw,   vol. 

x.\i,  pa-e  431. 
See  also   Xiles    Rej^islcr,   vol.   ;,   appeiulix,  pat^e    I91  ; 

appeiuli.x,  pa^e  66. 


( 1 

of 


By  this  aetion  of  the  two  countries  commercial  pri\ilei;es 
were  thus  extended  in  l.S^o  to  fishint;  and  all  other  vessels  of 
the  United  States,  and  to  this  extent  the  lanouaoe,  "  foi- n 
other  purpose  whatever,"  in  the  Treat)'  of  1S18,  declaratory 
tlie  then  e.xistin;_j  general  prohibition  ot  all  commercial  privi- 
leges between  the  two  coimtries,  was  modified. 

The  twenty-nintli  article  of  the  Treat\-  of  Washington,  ot 
1 87 1,  is  as  follows  : — 

.XRTICI.i:  XXIX. 

"  It  is  a.nrecd  tiiat,  for  ihi-  tiTin  of  years  nuntioiud  in  .\rli(  k'  XXXIll. 
of  tliis  licaty,  i;()ods,  wares,  or  nKichandisc  airivinj;  at  tin-  portiof  Xvu 
York,  I'oston,  and  Portland,  and  any  otlic-r  ports  in  tin.-  I'niled  .States 
\viiicli  have  i)een  or  may  from  time  to  time  be  specially  desi,!.;nated  by 
the  President  of  the  I'nited  .States,  and  destined  for  iler  biitamiic 
.Majesty's  possessions  in  North  America,  miy  be  entered  at  the  proper 
cnstom-house  and  conveyed  in  transit,  witlioni  the  pavmenl  of  dnlies, 
through  the  territory  of  the  Tnited  .States,  under  such  rules,  re.<;nlations, 
and  conditions  for  the  protiction  of  the  revenue  as  the  (iovernment  ol 
the  Unitetl  States  mav  from  time  to  time  prescribe;  and,  under  like 
rules,  res^ulations,  and  conditions,  i^ooils,  wares,  or  merchandise  may 
be  conveyed  in  transit,  without  the  pavnient  of  duties,  from  such  ])os- 
sessions  through  the  territory  of  the  I'nited  .States  for  export  from  the 
said  i)orts  of  the  I'niteil  .States. 

"  It  is  fuilher  ai^reed  that,  for  the  like  period,  lioods,  wares,  or  mer- 
chandise .irrixiui;  at  any  of  the  ports  {jf  IK-r  liritannic  .Majtsty's  jjosses- 
sions  in  North  .America  and  destined  for  the  Laiited  .States,  may  be 
entered  at  the  proper  custom-house  and  conveyed  in  transit,  without  the 
payment  of  duties,  throu.i;h  the  said  possessions,  under  such  rules  and 
ret.',ulations  and  conditions  for  the  [irotection  of  the  revenue  as  the  Ciov- 
eruments  of  the  said  possessions  may  from  time  to  time  ])rescribe  ;  .md, 
under  like  rules,  regulations,  and  conditions,  iit)oils,  wares,  or  merchan- 
dise may  be  ct)nveyed  in  transit,  without  i)ayment  of  duties,  from  the 
United  .States  throu,<;l)  the  said  possessions  to  other  jilaces  in  tlie  United 
States,  or  for  ex|)ort  frt)m  jiorts  in  the  said  possessions." 

Article  XXIX.,  treaty  of  Washington,  1S71,  Wheaton's 
International  Law,  second  edition,  700. 


^m: 


Thus,  b\' tlic  action  of  the  two  countries  in  iS^o,  ;uul  by 
the  twenty-ninth  section  of  the  Treaty  of  1871,  have  the  pro- 
prietarj'  and  ancient  rights  and  hberties  of  this  countr}"  in  the 
North  Atlantic  fisheries  been  supplemented  b\'coniniercial  and 
transportation  privileges.  The  existence  of  these  privileges  is 
emphasized  b\-  the  fact  that  when  during  the  negotiation  of 
the  Treat}'  of  l8i8  a  proposition  was  nuule  b\-  the  liritish 
Con)missioners  to  insert  a  stipulation  that  "it  shall  not  be 
lawful  for  the  vessels  of  the  United  States  engaged  in  the  said 
fishery  to  ha\e  on  board  any  gootis,  wares,  or  merchandise 
vvhate\'er,  except  such  as  ma}'  be  necessarx'  for  the  i)rosecu- 
tion  of  the  fisher}'  or  support  of  fishermen,"  it  was  objectetl 
to  b}'  the  American  Commissioners  nn  the  ground  that  it 
"would  expose  our  fishermen  to  endless  \e.\ations,"  and  it 
was  withdrawn. 

These  commercial  and  transjiortation  privileges  luue  been 
and  are  at  this  time  freel}'  and  full}'  exercised  bv  the  Canadians. 
Their  fishing  and  other  \essels  enter  and  use  our  ])orts,  eiijo}'- 
ing  without  restriction  and  to  the  fullest  extent  exer}'  privilege 
claimed  b}'  the  fishing  x'essels  of  the  United  States  under  the 
concurrent  action  of  the  two  countries  in  1830,  and  the  twent}'- 
ninth  clause  of  the  Treat}'  of  Washington. 

The  "  hoadlaiid  "  doctrine  of  tlio  raiiadiaiis,,  and 
the  constrnetion  att«'nipted  to  be  pni  upon  oui* 
proprietary  ri.i»lits  Avh<»reby  the  Anierit'an  lish- 
ernien  are  denied  the  ri}»lit  to  enter  bays  and 
harh<)rs  to  piirehase  eoal  for  fuel,  and  bait,  and 
to  transship  tlieir  eateli,  are  "new  <loelrines," 
and  have  been  set  up  not  only  in  deiianet'  of  tlie 
plain  intent  of  tlie  treaties  and  lej»islalion  un- 
der wliich  our  ri,i»lits  are  recoj»nized,  anil  (he 
rulings  nptni  tlieni,  but  as  af(er-thouj»lits,  aiul 
contrary  to  the  views  of  the  British  Ciovern- 
luent. 


Considering  the  origin  and  nature  of  the  rights  of  the 
United  States  in  the  North  Atlantic  fisheries,  the  relative  sit- 
uation of  the  two  countries  and  the  close  commercial  relations 


28 


cxistiii;^  between  them,  and  construing  the  Treat)-  of  i8i8  as 
one  of"  friendship  and  not  of  hostility,"  antl  according  to  the 
customary  rules  applicable  to  instruments  of  this  character, 
the  rights  of  tlie  Um'ted  States  and  of  its  fishing  vessels  in 
the  North  i\tlantic  fisheries  and  their  privileges  in  Canadian 
ports  would  seem  to  be  clear  under  the  treat)'  stipulations  and 
the  concurrent  legislation  of  the  two  countries. 

The  libert)'  of  American  vessels  to  fish  within  three  miles 
of  certain  parts  of  the  shore  was  practically  the  only  privilege 
which  under  the  Treaty  of  iSi8  was  renounced  b)'  the  United 
States,  and,  with  this  restriction  only,  the  fishery  rights  of  the 
United  States  are  the  same  as  those  of  Canada  itself 

The  bu)'ing  of  bait  and  sujiplies  by  fishing  or  an)-  other 
vessels  of  the  United  States  in  Canadian  ports  is  a  commer- 
cial privilege  to  which  they  are  entitletl  under  the  action  of 
the  two  countries  in  1830;  and  the  right  of  American  fishing 
vessels  to  transshij:)  their  catch  from  Canadian  ports  to  points 
in  the  United  States  is  secured  to  them  by  the  twenty- 
ninth  clause  of  the  Treaty  of  1 871. 

Canada,  however,  now  insists  that  the  fishing  vessels  of 
the  United  States  have  no  right  to  enter  any  bays  of  Canada, 
no  matter  how  wide,  and  have  no  right  to  buy  bait  and  sup- 
plies or  transship  their  catch  from  Canadian  ports  to  points  in 
the  United  States  ;  and  has  endeavored  so  to  harass  and  annoy 
our  fishing  vessels  in  the  exercise  ot  rights  which  it  admits 
them  to  possess  as  to  make  these  rights,  for  the  present, 
worthless.  The  position  assumed  is  that  the  fishery  riglits 
of  the  United  States  are  nothing  more  than  the  ordinary 
rights  of  fishing  which  are  permitted  to  citizens  of  another 
so\ereignt)-  by  a  country  having  the  exclusive  territorial 
jurisdiction  over  them,  and  the  proprietary  rights  of  the 
United  States  in  them  are  ignored. 

Wheaton,  in  describing  the  right  of  fishing  of  one  nation 
in  the  jurisdictional  waters  of  another,  .says: — 

"  The  right  of  fishing  in  the  waters  adjacent  to  the  coasts 
of  any  nation,  within  its  territorial  limits,  belongs  exclusively 
to  the  subjects  of  the  State.  The  exercise  of  this  right  be- 
tween France  and  Great  Britain  was  regulated  by  a  conven- 


Ig 


tion  concliulod  between  these  two  powers,  in  1839;  In-  tlie 
ninth  artiele  of  whieh  it  is  provitletl,  that  I'^eiich  siiljjects 
shall  enjoy  the  excliisixe  right  of  tlshini^  alon<:f  the  whole 
extent  of  the  coasts  of  France,  within  the  ilistance  of  three 
geographical  miles  from  the  shore  at  low-water  mark,  and 
that  British  subjects  shall  enjo\'  the  same  exclusive  right  along 
the  whole  extent  of  the  coasts  of  the  British  Islands,  within 
the  same  distance ;  it  being  understood,  that  upon  that  part 
of  the  coasts  of  France  l\ing  between  Cape  Carteret  and  the 
point  of  Monga,  the  exclusive  right  of  French  subjects  shall 
only  extend  to  the  fishery  within  the  limits  mentioned  in.  the 
first  article  of  the  convention ;  it  being  also  understood,  that 
the  distance  of  three  miles,  limiting  the  exclusi\e  right  of 
fishing  upon  the  coasts  of  the  two  countries,  shall  be  meas- 
ured, in  respect  to  bays  of  which  the  opening  shall  not  exceed 
ten  miles,  b\'  a  straight  line  drawn  from  one  cape  to  the  other." 
Section  180,  Wheaton's  International  Law.  (Boxd's  cd.), 
page  241. 

A  privilege  of  this  kind  is  verj-  different  in  its  character 
from  the  proprietary  rights  possessed  by  the  United  States  in 
the  North  Atlantic  fisheries. 

Consequent  upon  the  three-mile  limit  from  the  shore,  pro- 
vided untler  the  treaty  of  1818,  the  Unitetl  States  has  never 
since  claimed  the  right  to  fish  within  ba\s  whose  headlands 
were  less  than  six  miles  apart.  But  Canada  asserts  that  the 
fishing  vessels  of  the  United  States  have  no  right  to  fish  in 
any  of  its  bays,  no  matter  how  wide  between  the  heatUands, 
a  claim  which  was  not  set  up  until  some  twent\-  }ears  after 
the  treaty  of  1 8 18  had  been  concluded. 

The  position  now  assumed  by  Canada  took  no  definite  shape 
until  some  time  after  the  year  1841,  when  the  opinion  of  the 
law  officers  of  the  Crown  in  England  was  given  on  certain 
questions  submitted  by  the  Nova  Scotia  Government,  which 
set  forth  and  were  based  on  the  fundamental  error  that  the 
United  States  had  obtained  the  "  right  to  take  fish  on  the 
Grand  Banks,"  &c.,  at  the  peace  and  under  the  Treat}-  of  1783. 
This  error  in  the  questions  submitted  was  only  equaled  by  the 


30 

recklessness  of  the  opinion  that  hekl  unqiialifieilly  "that  the 
Treat)'  of  1783  was  annulled  b\'  the  War  of  liSi2,"  and  that 
"  no  rij^ht  exists  on  the  part  of  American  citizens  to  enter  the 
bays  of  No\a  Scotia  there  to  take  fish,  altlioiigh  the  fisliing 
beini:^  within  the  bay  may  be  at  a  L^neater  distance  than  three 
miles  from  the  shore  of  the  bay,  as  we  are  of  the  opinion  that 
the  Icnii  luadlaitd  is  used  in  tlii  treaty  to  express  that  p.irt  of 
the  land  we  ha\e  before  mentioned,  excluding  the  interior  of 
bavs." 

Sabine's  Report  on  the  Fisheries,  pages  405,  472  ; 

Speech  of  I  Ion.  Lewis  Cass,  U.  S.  Senate,  Aug.  3,  1852, 
Appendix  Cong.  Globe,  vol.  25,  page  896. 

As  has  already  been  shown,  the  liritish  Government  liad 
not,  in  the  negotiations  of  tlie  Treaty  of  181 8, claimed  that  the 
Treat)-  of  1783  was  entirely  abrogatetl  b)-  tlie  War  of  181 2. 
B)\the  language  of  tlie  Treaty  of  18 1 8  the)- were  anil  are 
estoi)pcd  from  asserting  that  the  fishery  liberties  reserved  by 
the  Treaty  of  1783  were  annulled.  The  argument  of  the 
American  Commissioners,  in  the  negotiations  of  the  Treaty  of 
Cihent  and  the  Treaty  of  181 8,  was  conclusive  that  the  War 
of  1S12  had  not  deprived  us  of  our  fisher)-  rights  ami  liber- 
ties under  the  Treat)-  of  1783.  Die  rule,  as  stated  by  writers 
on  international  law,  was  and  is  substantially  that  treaties  stip- 
ulating for  a  permanent  arrangement  of  territorial  and  other 
national  rights  are  not  annulled  b)-  war. 

Wharton's    International   Dig.,  ii.,  chapter  vi.,  section 

The  Supreme  Court  of  the  United  States  (8  Wheaton,  464, 

1823),  held  that— 

"  WliL-re  trtatiLS  ({(nUinplale  a  porniaiK-nt  arraiij^x-niLMU  of  terrilurial 
ami  ollur  national  rii;lils,  or  which  in  tlieir  tLrms  arc  nit-anl  to  provide 
tor  tiic  event  of  an  intcrvciiin;;  war,  it  would  he  a.nainst  every  princijile 
of  Just  interpretation  to  hold  tiieni  e.\tint;nished  by  the  event  of  war.  If 
such  were  the  law  even  the  Treaty  of  i7<S3,  so  far  as  it  fi.xed  our  limits 
and  acknowledi^ed  our  inde|)endence,  would  jje  gone,  antl  we  should 
have  hail  again  to  struggle  for  botii  U]ion  original  revolutionary  princi- 
])les.  Such  a  construction  was  never  asserted  and  would  be  so  mon- 
strous as  to  supersede  all  reasoning." 


464, 


31 

In  the  case  of  Sutton  T'.v.  Sutton,  I  Rus.  6v:  M.,  675,  1830,  it 
was  held  by  Sir  J.  Leach,  Master  of  the  Rolls,  that  territorial 
rights  gi\en  under  the  Treaty  of  1794  between  Great  Britain 
and  the  United  States,  were  permanent  in  their  character,  and 
were  not  abrot^ated  by  the  War  of  i8l2.  This  case;  the  de- 
bate in  Parliament  lelatiiiL;"  to  the  Treat)-  of  Ann'ens.  in  1  So2 
(Hansard's  Deb.,  xol.  xxiii.,  paj^e  1147);  •i"'^!  the  opinions  of 
Sir  James  Marriot,  in  1765,  and  of  i\ttorne\-(ieneral  Rx'der 
antl  Solicitor-General  Murra\-,  in  1753,  to  the  effect  that  the 
tisher\-  clause  ii;  the  Treat}'  of  Nov'cmber  iTjlh,  1686,  between 
I'jij^land  and  France,  was  not  annulled  l)y  war  (Opinions  of 
iMiiinent  Law>'ers,  6vc.,  Geo.  Chalmers,  vol.  ii.,  ])asjjes  344,  355, 
1814),  must  be  presumed  to  ha\e  been  known  lo  the  law  offi- 
cers of  Crown  in  1 841. 

The  disre^^ard  of  these  precedents  and  the  statement  in  the 
opinion  that  ''the  term  headland  is  used  in  the  treat)',"  when 
that  word  is  not  found  an)'where  in  it,  do  not  render  the 
oi)inion  creditable  to  the  accuracy  or  professional  reputation 
of  tile  j^entlemen  who  gave  it. 

'Jlie  lion.  Hannibal  Hamlin,  in  1852,  referring  to  the 
Treat)'  of  181  8,  and  the  new  doctrine  set  up  b)-  Canaila  under 
the  opinion  referred  to,  said  : — 

"  TliL-  only  tliini;  clainn-d  tlirou.uli  all  the  ne.notiatioiis  was  that  we 
slioiild  1)L-  (.Nc'.uded  iVdin  cdiniiit;  witliiii  tliitc-  niilfs  of  tliL-  shore, 
not  bays  that  were  ka.!.;iRS  in  LXtt-nt.  Had  such  l)Ltn  the  intention  ot 
any  jiarty  to  the  treat_\',  ue  should  find  somewhere  sueli  a  claim. 
.None  siicii  was  made.  Had  there  been,  it  would  have  been  promjitly 
denied.  'IMiat  clause  which  says,  'that  the  I'nited  .St.ites  herei)y  re- 
noinice,  k)rever,  an\'  liberty  heretofore  enjoNed  or  claimed  by  tlu-  in- 
habitants thereof,  to  take,  dry,  or  cure  llsh  on  or  within  tinee  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors,  tvc.,'  is  to  exclude 
us  from  the  i^reat  bays  and  gulfs.  Was  such  the  intention  of  Cireat  Hrit- 
ain  ?  She  never  made  any  such  pretensions  tluring  all  the  nej.';otiations. 
and  when  we  renounced  our  right  lo  the  shore  fisheries,  as  we  did  in  the 
treaty,  and  of  taking  (isli  witiiin  tin-ee  marine  miles  of  the  coasts,  b.iys, 
creeks,  and  harbors,  that  language  became  necessary  to  exclude  us  from 
the  small  ba\s,  creeks,  and  harbi,>rs  within  three  miles  of  the  shore — 
within  the  jurisdiction  of  Cireat  Britain,  and  which  we  had  formerly  en- 
joyed— claimed  as  a  right.  That  such  was  the  intention  of  the  parties 
must  be  interred  from  the  facts  to  w  hich  I  iiave  alluded,  which  took  place 
during  the  negotiations. 


3- 


"  Hut  tliL'  last  claiisf  of  the  aititli-  coiitaiiud  in  tlu'  proviso  at  tlie  fiul, 
will  f.\i)lain  what  hays,  curA's,  and  harbors  wrru  siirii-iuKitd  up  i;y  our 
(iovtrmiKiit.     Tile  arlick'  says: — 

"  '  AiiK-rican  lisheriiifii  sliall  \w  adinitttd  to  iiitcr  siuli  hays  ami  liarlxirs 
for  tile  piirposi-  of  ,v//(7/(7',  ami  Uix  rtpairiii^  i/aii/a^is  f/uiiiii,  piiiclias- 
iiij;  wood,  ami  ohtaiiiiiij;  water.' 

"  Tlic  hays  and  /larhois  wliicli  an-  sinrt-ndi'n-d  np  !>>■  tiir  Americans 
art'  ///(■  hays  and  harbors  into  uhicii  tlic  Aimrican  lishirmcn  may  .s;(j  to 
tind  a  slwllcr,  rrf^air  tiaiiia,i;i's,  pnrciiasf  uooi/,  and  ohtain  water.  All 
these  thinj;s  could  only  he  done  in  the  small  harhors,  which  would  allbrd 
shelter,  and  where  dam.i^e  could  he  repaired.  But  to  allow  tlshermen 
to  ,no  into  the  (iulf  of  .St.  Lawrence  or  the  Hay  of  {•"undy  for  repair  or 
siieiler!  They  might  with  far  .ureater  propriety  seek  the  open  sea  for 
shelter,  for  with  sulVicient  .sea-room  they  miKht  he  safe,  while  in  such 
hays  as  the  Hay  of  I''undy  they  would  he  sure  of  ilestruction  upon  a  lee 
siiore.  {Setter,  far  hetttr,  to  seek  the  hroad  ami  trac:kless  ocean  for  a 
shelter,  to  repair  for  wood  or  water.  Tlie  \ery  uses  to  which  these  hays 
and  liarhors  are  to  he  ai)pro|)riated  must  sliow  what  was  intended — such 
harhors  ami  hays  as  could  he  used  for  the  imrposes  named,  'liie  same 
interpretation  of  the  word  hay  in  the  treaty,  when  applied  to  l'"undy, 
riialeur,  or  .St.  Lawrence,  should  l)e  understood  as  wiien  ;i|)piied  to  tiie 
Hay  of  Hiscay  or  the  (iulf  of  .Mexico. 

"Another  view  of  this  (|uestit)n  will,  it  is  helieved,  furnish  us  with  what 
is  the  true  construction  of  the  treaty,  by  which  we  are  restricted  in  certain 
hays,  creeks,  and  harhors  therein  named.  \\'hat  were  the  rij;hts  enjoyed 
hy  our  hshermen  under  the  Treaty  of  ijS;,?  They  IkuI  the  ri^ht  and  did 
use  what  is  known  as  the  shore  fisheries  inside  of  three  miles  from  the 
shore,  and  in  the  hays,  creeks,  and  harhors,  with  which  the  whole  coast 
was  indented.  These  were  what  wt'  occui)ieil.  and  for  many  pmposes 
they  were  very  valuable.  To  them  were  claimed  a  ri.ijht,  and  these  were 
the  privile.nes  wiiich  we  renounced.  A  line  drawn  from  indentation  to 
indentation  alons;  the  coast,  as  has  always  been  contended  for  i)y  our 
Government,  would  exclude  us  from  tlu-  sliore  fisheries,  which  were  and 
are  so  called  in  distinction  from  the  sea  fisheries  more  than  three  miles 
from  the  shore. 

"  Besides,  the  intention  of  our  ministers  who  negotiated  the  treaty,  and 
the  evidence  which  the  protocols  furnish  as  the  negotiaticjns  progressed, 
all  concur  to  aid  us  in  our  construction.  These  protocols  and  this  evi- 
dence of  that  time  are  of  great  imjjortance,  and  cannot  fail  to  carry  con- 
viction along  with  them  as  to  what  was  intended  hy  the  language  used 
in  tlie  treaty  and  the  reasons  for  which  it  was  placed  there." 

Appendix  to  the  Congressional  Globe,  vol.  25,  page  900. 
August,  l852,Thirt\--second  Congress,  First  Session. 

In  his  letter  of  July  iSth,  1853,  to  Secretary  of  State 
Maic\',  Richard  Rush,  who  was  one  of  the  commissioners  on 


.1 


33 

tin-  part  (if  the  Um'tcd   Status  in  iiiakiiv^f  tlic  treat)-  of  iSiS, 
thus  rclcr'^  to  \\u-  pretensions  of  Canada: — 

"  In  si|j;nin,L;  it,  uc  Ijt^licved  tli.it  ui-  retained  tin-  ri.L;lit  of  lisliiiii;  in  tin- 
sea,  wlietiuT  railed  a  hay,  null,  or  by  whatever  (ither  term  desi,i;nati(l, 
that  washed  any  pari  of  the  citast  of  the  liritish  North  American  prov- 
inces, with  the  simple  cNceptioii  that  we  did  not  come  within  .i  marine 
leai;iie  of  the  short-.     We  had  tiiis  rijiht  hy  the  law  of  n.itioiis. 

"  lis  coalirinalion  was  in  the  'irt-aty  of  \~^;-,.  We  retained  it  imdimin- 
ished,  miless  we  ^ave  it  nji  !)>■  the  first  .irticle  of  tiie  convention  tA'  iSiS. 
This  we  did  not  do.  'i'he  arli<le  warrants  no  sm  h  constrnclion.  Mr. 
I*'verett,  when  minister  in  I.ondon,  writin}^  to  Lord  .Aberdeen,  Au;<ust 
loth,  iS.}',,  nnder  instructions  from  the  Secretary  ol  .State,  remarks  that 
'the  ri.i;lil  of  fisliinjj  on  .in\'  part  ol"  the  coast  of  Nova  .Scotia  (coiise- 
i|neMtl\-  in  the  I'a\'  of  I'lnnK  :  .it  a  i;realer  distance  than  tiiree  miles  is  so 
plain  tli.it  it  would  he  dillicult  to  conceive  on  what  ground  it  could  !)e 
dr.iwn  in  (lueslion  had  nol  attempts  betn  m.ide  l)y  die  proxincial  author- 
ities ol  Iler  .MajesU's  (Jovernmenl  to  interfere  uilli  ils  exercise;'  and 
.Mr.  ,Sle\enson,  minister  in  London  before  Mr.  I'^entt,  while  writinuj  to 
Lord  I'almerston,  ^hirch  27th,  1.S41,  in  reference  to  om-  ri.uht  to  fish  in 
the  lar.i;e  outer  bays,  says  'the  stipulations  of  the  'I'realy  (coiuentioni  of 
iSiS  are  believed  to  he  too  plain  ;uid  e.xplicit  to  le.ive  room  for  doubt  or 
misapprehension.' 

"As  to  ihe  I5ay  of  l-'undy,  i>art  of  its  coast  bel()n<;s  to  one  of  the  .States 
of  the  I'nion,  iiami'h,  Maine.  I  leiice  I'litain  cannot  cliiim  it  ashere.xchisive 
dominion.  Ilad  Mr.  C'lallatin  been  told  by  the  liritish  pleiiipoliiitiaries 
tiiat  the  first  article  of  the  coiueiition  would  close  the  e.\tensi\e  waters 
of  thai  bay  a.i;ainst  our  fisluriiieii,  1  do  not  beliexe  he  would  have  sit^ned 
it.  I  am  sure  1  would  not  ha\e  sij^ned  it.  'J'he  s|)iril,  conte.xt,  all  tiie 
concomitants  of  the  article,  pointed  to  a  dilferenl  meanin.i;.  I  need  not 
cite  all  its  words.  \nu  are  famili.ir  with  them.  It  will  be  enoui;h  to 
brini;  into  view  the  jjroviso  which  follows  the  clause  of  renunciation. 
That  part  runs  thus  : — 

"And  the  L'nited  Stales  hereby  renounce  forever  any  liberty  hereto- 
fore eni(ned  or  claimed  by  the  inhabitants  thereof  to  take,  dry,  or  cure 
fish  on  or  within  three  marine  miles  of  any  of  the  coasts,  bays,  creeks, 
or  harbors  of  His  Hrilaiinic  IVLajesty's  dominions  in  America  not  included 
within  the  above-mentioned  limits  (those  set  out  for  us  in  the  be.Lcinnin.u^ 
of  the  article)  :  /^rovidcif,  /io7ciT('i\'V\v,\i  the  American  fishermen  shall 
be  permitted  to  enter  sucii  bays  or  harbors  for  the  purpose  of  shelter  and 
of  repairing  damajjes  therein,  of  purchasing  wood,  and  of  obtaininj;  water, 
and  for  no  other  purpose  whatever." 

"These  are  the  deci.sive  words  in  our  tavor.  They  meant  no  more 
than  that  our  fishermen,  whilst  fishing  in  the  waters  of  the  Hay  of  Fundy, 
should  not  go  nearer  than  three  miles  to  any  of  those  smaller  inner 
bays,  creeks,  or  harbors  which  are  kn(jwn  to  indent  the  coast  of  Nova 
Scotia  and  New  Brunswick. 


"  To  siippoSL'  tliey  wvw  hoimd  to  kc-i'p  tliifi-  milts  nil  Innii  ;i  liiu- 
(liiiwii  from  licidlaiul  tn  lifadliiiul  on  tln'  cxlii'iiu-  oiilsidc  limits  ot  that 
bay,  a  line  uliicli  mii;lit  iirmsuii'  lilt\ miles  or  iiidic,  at  i  iirdiiij;  to  the 
niaimtr  of  diauiii^j  or  imaj;iuiiiK  it,  would  hi;  a  most  imiiatiiral  siijipo- 
sitioii.  I  caimot  think  that  it  i-ntcrcd  the  minds  of  thf  liritish  pk-nipo- 
tentiarlc's  any  mon-  than  ours.  l'"or  woiikl  it  not  hi-  tisc-kss  to  tell  lish- 
eriucn,  when  half  witicked,  that  they  minht  cross  such  a  line  fir  the  pur- 
pose of  seekinj,^  shelter  in  hays,  creeks,  and  har!)ors,  lyinj;'  at  an  imnienst; 
distance  inside  of  it  ?  'rem|)est-tossed  outside  of  a  j;reat  sea-line-  like 
that,  damaj;ed  in  sails  and  ri.u.ninj;,  how  were  they  to  reach  the  shelter- 
ing havens  they  desired?  To  suppose  it  is  a  mockery;  .uul  similar 
reasoning  applies  to  all  the  other  lar^e  hays  and  i;ulfs. 

"We  inserted  the  clause  of  renunciation.  Tlu'  I'ritish  plenipoten- 
tiaries dill  not  desire  it.  Without  it  room  mi^ht  have  heen  left  for  the 
inlV-rence  that  what  we  i^ot  imdir  the  convention  was  a  s;rant  from 
i5ritain  ;  whereas,  oiu"  yrounil  of  ar,i;ument  lieinj;  that,  witii  the  excep- 
tion of  shore  privik'Ke,  our  fishing  rights  remained  as  under  the  Treaty 
of  17.S3,  we  could  rei-eive  nothing  which  had  heen  agreed  upon  hy  the 
first  article  111  the  light  of  a  concession  or  favor  from  her.  We  took  it 
only  as  part  of  a  coe(|ual  agreement  and  in  the  sense  of  a  compromise. 

"  In  conformity  with  our  construction  was  the  practice  of  Ikitain  her- 
self after  the  convention  was  ratilkd.  Our  fisiiermen  were  waiting  for 
the  word  not  of  exclusion,  hut  admission,  to  those  large  outer  bays. 
They  had  been  shut  out  from  them,  some  captured,  and  all  warned  away 
after  the  Trtaty  of  (ihent.  The  inltrxal  was  an  anxious  one  to  them. 
Accordingly,  as  soon  as  tiie  convention  went  into  operation,  they 
eagerly  hastened  to  tiieir  ancient  resorts,  reinstated  by  the  provident 
care  of  their  Clovernment.  1  leiice  the  signiticant  motto  of  our  Revo- 
lutionary ])atriot  and  sage,  that  we  would  both  fish  and  hunt  over  the 
same  grounds  as  heretofore.  No  complaint  was  made  or  whispered  by 
any  member  of  the  Ihitish  Government  of  that  ilay  of  whicii  I  ever 
heard. 

"  I  remained  minister  at  the  court  nearly  seven  years  after  the  signa- 
ture and  ratification  of  this  convention.  Opportunities  of  complaint 
were  therefore  never  wanting.  If  intimated  to  me  it  would  have  been 
my  duty  to  transiuit  .it  once  any  such  intiiuation  to  our  (jovernment. 
Nor  did  I  ever  hear  of  complaints  through  their  legation  in  Washington. 
It  would  have  ])een  natural  to  make  objection  when  our  misconstruction 
of  the  instrument  was  fresh,  if  we  did  misconstrue  it.  The  occasion 
would  have  been  especially  opportune  when  I  was  subsequently  engaged 
in  extensive  negotiations  with  hjiglaud  in  1823-24,  which  brought  under 
cimsideration  the  whole  relations,  commercial  and  territorial,  between 
the  two  countries,  including  our  entire  intercourse  by  sea  and  land  with 
her  North  American  colonies.  Still,  silence  was  never  broken  in  the 
metropolitan  atmosphere  of  London  whilst  I  remained  there. 

"  \'our  letter  informs  me  that  for  more  than  twenty  years  after  the  con- 
vention there  was  no  serious  attempt  to  exclude  us  from  those  large 


■-•M 


35 

hays,  1111(1  Mr.  I-A-tTi-lt,  writing  iis  Srcictiiiy  (if  State,  niily  on  the  .|tli  dI" 
l)fCciiil)LT  last,  to  Mr.  ln;;frsoIl,  tlicii  our  miui^tur  in  London,  rt-ntltMs 
more  detiiiite  tlu-  time  you  would  indicite,  liy  sayinjj  tliat  '  it  was  just  a 
<|i;artir  of  a  century  alter  the  date  of  tiie  (onvention  hifore  tlie  Inst 
.\nuricaii  fisherman  w.is  captured  tor  lisiiinn  at  lar>;e  in  Hay  of  I-inidy.' 
I  liiui  it  extremely  dilliciih,  under  any  lights  at  i)rcsent  i)etoreme,  to  explain 
the  extraordinary  circumstances  which  environ  this  international  iiues- 
tion  consistently  with  the  resj)ectdue  to  thehi>,di  party  on  the  otiier  sidi'; 
feelin,i;s  tile  most  trieiidly  bein^;  ever  due  to  her  from  the  ina);nitude  ol" 
the  interi'sts  hound  up  in  the  suhsisti'iice  of  harmonious  relations  he- 
twteii  the  two  countries." 


The  claim  of  Canada  was  pioiioiiiicccl  a  "  new  doctrine"  by 
Mr.  liatcs.thc  uiii[)irc  in  tlic  case  of  the  "  W^ishiiiifton  "  in  i  S53, 
who  decided  that  the  .seizure  of  an  American  ves.sci  while 
fisliini^  in  tlie  Haj'  of  l'\indy  wa.s  illegal,  ami  this  doctrine  wa.s 
again  repudiated  by  the  umpire  in  the  case  of  tlie  "Ar^iis," 
.seized  for  fishini;  on  Saint  Ann's  liank  within  headlands. 

These  ca.scs  are  thus  referretl  to  in  Wharton's  International 
Law  Dioest,  section  305a,  vol.  3,  pai^e  59 : — 

"  A  construction  of  the  terms  '  coasts,  l)a\s,  creek.s,  or  har- 
bors,' in  the  treat)'  of  1 8 18,  was  crjven  b\'  the  mi.\ed  commis- 
sion luider  the  convention  of  1853,  in  the  case  of  the  United 
States  fishint^  schooner  '  VVashinoton,' which  was  seized  wliile 
fishin<^  in  the  ]iay  of  Fund}-,  ten  miles  from  shore,  taken  to 
Yarmouth,  Nova  Scotia,  and  adjudged 'forfeited  on  the  charge 
of  violating  the  treaty  of  1818  bj-  fishing  in  waters  in  which 
the  United  States  liad,  by  that  con\ention,  renounced  the 
right  of  its  citizens  to  take  fish.  A  claim  of  the  owners  of 
the  'Washington'  for  compensation  came  before  tlie  com- 
mission above  mentioned,  and  the  commissioners  differing, 
the  case  was  referred  to  Mr.  Joshua  Bates,  the  lunpire,  who, 
referring  to  the  theory  that  *  bays  and  coasts'  were  to  be  de- 
fined b\-  '  an  imaginary  line  drawn  along  the  coast  from  head- 
land to  headland,  and  that  the  jurisdiction  of  Her  Majesty 
extends  three  marine  miles  outside  of  this  line,  thus  closing 
all  the  bays  on  the  coa.st  or  shore,  and  that  great  body  of  w  ater 
called  the  Bay  of  Fundy,'  pronounced  it  a  '  new  doctrine,' 
and,  rc[)udiating  the  decision  of  the  provincial  court  based 
thereon,  awarded  the  owners  of  the  vessel  compen.sation  for 


an  illegal  condemnation.  The  umpire  also  decided  that  as 
the  l^a\-  of  l-'iincl)-  is  from  sixty-five  to  seventy-five  miles  wide 
and  fn»m  one  hundred  and  thirty  to  one  luindred  and  forty 
miles  long,  with  several  '  ba}s '  on  its  coasts,  and  has  one  of 
its  headlands  in  the  United  States,  and  must  be  traversed  for 
a  long  distance  by  vessels  bound  to  Passamaquodily  Bay,  and 
contains  one  Unitcil  States  island,  Little  Menan,  on  the  line 
between  headlands,  the  Bay  of  h'undy  could  not  be  considered 
as  an  exclusively  British  ba\-.  (See  President's  message  com- 
municating proceedings  of  commission  to  Senate;  also  Dana's 
Wheat!  >n,  section  274,  note  142.)  The  '  headland  '  theory  was 
a'Jiiun  rejected  b\'  the  umi)ire  in  the  case  of  the  schooner 
'  Arirus,'  \\hich  was  seized  while  fishing  on  Saint  Ann's  liank, 
twenty-eight  miles  from  Cape  Smoke,  the  nearest  land,  taken 
to  Svdnev,  and  sold  for  violation  of  the  treatv  of  18 18  bv  fish- 
ing  within  headlands.  The  owners  were  awartleii  full  com- 
pensation. 

"  Mr.  Dana,  in  this  connection,  quotes  (Dana's  Wheat.,  sec. 
274.  note,  142)  from  the  treaty  between  Great  liritain  and 
France  of  1839  the  following  provisions:  'It  is  agreed  that 
the  distance  of  three  miles,  fixed  as  the  general  limit  of  the 
exclusive  right  of  fishing  upon  the  coasts  of  the  two  coun- 
tri^'s,  sliall.  with  respect  to  ba\s  the  mouths  of  which  do  not 
exceed  ten  miles  in  width,  be  measured  from  a  straight  line 
drawn  from  heailland  to  heatlland. ' 

"As  to  the  British  concession  that  the  Bay  of  Fundy  is  an 
open  sea,  see  papers  connected  with  message  of  President 
Fillmore.  I'ebruary  28th,  1 85 3,  with  Senate  Confid.  Doc.  No.  4, 
special  session  1853,  and  see  particularly  Mr.  Everett,  Sec.  of 
State,  to  Mr.  Ingersoll,  Dec.  4th,  1852,  MSS.  Inst.  Gr.  Brit, 
appended  to  message  aforesaid. 

"As  to  detention  of  fishermen  in  the  Bay  of  Fundy,  .see 
President  Monroe's  message  of  P'eb.  26th,  1825,  House  Doc. 
No.  408,  1 8th  Cong.,  second  sess.,  5  Am.  St.  Pap.  ( For  Rel.),  735. 

"  Mr.  Rush's  notes  of  negotiation,  Monroe  papers,  Dept.  of 
State." 

The  British  Go\ernmcnt  has  not  supported  the  Canadian 
authoritie^  in  their  claim,  and  practically  yielded  the  claim  in 


3/ 

favor  of  the  United  States.  No  better  acct)unt  of  the  course  of 
the  British  Govermiieiit  on  this  question  can  be  given  than 
tlial  b\'  Mr.  Phelps,  in  his  letter  of  June  2cl,  lSS6,  to  Lord 
Rosebury,  of  June  2d,  iSSf).  Senate  ICx.  Doc.  No.  113,  50th 
Congress,  first  sess.,  p.  413. 

"  ( )ii  tliu  26tli  of  .May,  iS7(>.  Mr.  'I'lionitoii,  tlu-  I5ritish  iniiiister  at 
\\'a.-iliiii.i.;l(in,  (•(iinmuiii<atttl  oHirially  to  tlie  .St-irctary  of  -Statt.-  of  the 
I'liiticl  .Slatrs  copies  urilie  orders  adtlressed  by  tlie  IJriusli  Admiralty  to 
Admiral  Wellesley  commaiuliii,n  I  kr  Majesty's  naval  forces  011  the 
North  .American  station,  and  of  a  letter  iVom  the  colonial  department  to 
the  Foreii^ii  ( Xlice,  in  order  tiiat  the  secretary  mi<;ht  'see  the  nature  of 
the  instriKtions  to  be  <;iven  to  Her  Majesty's  and  the  Canadian  ollicers 
eini^loyed  in  maintainini;'  order  at  the  fislieries  in  tlie  neii;lilii>rliood  of 
the  coasts  of  Canada.'  .XnioiiL;  the  tlocnments  llms  transmitted  is  a  let- 
tef  from  tlie  l'"oiei!.;n  ( Xlice  to  the  .Secretary  of  tlie  A(!mirait\,  in  uhicli 
the  followinjLj  lani;uai;e  is  coiUained  :  — 

"  '  'I'he  Canadian  Ciovernmeiit  has  recently  determined,  with  the  con- 
currence of  iler  Majesty's  minister,  to  increasi-  the  strin.i;enc\'  of  the  ex- 
istinji^  practice  of  dispensin;^  with  the  warnim^s  hitiierlo  L;i\en  ;md  seizin;.;' 
at  once  any  vessel  detecteil  in  violating  the  law . 

"  '  In  view  of  this  chan,<;e  and  of  llu'  (piestions  to  wliicli  it  ma\'  ,s;ive 
rise,  I  am  directed  by  Lord  (iraiiville  to  recpiest  that  you  will  move  their 
l()rdshi|)s  to  instruct  the  otticers  of  I  ler  Majesty's  ships  emjiioyeil  in  the 
])i()tection  of  the  fisheries  that  tluy  are  not  t(j  seize  an\'  \essel  unless  it 
is  eviilent  and  can  be  clearly  proved  that  tlie  offense  of  tishini;  has  been 
committed  ami  the  vessel  itself  captured  within  iliue  miles  of  land.'  " 

In  the  letter  frotn  the  lords  of  the  Admiralty  to  X'ice- 
Adniiral  \\'ellesle\-  of  Ma\-  5th,  I  S70,  in  accordance  with  the 
foregoino-  retpiest,  and  transmitting  tlie  letter  above  quoted 
from,  there  occurs  the  following  laiigiiagc  : — 

"  .My  lords  desire  nu'  to  remind  yon  of  the  extreme  importance  of 
comniandini;(ilVicers  of  the  ships  sc-kcteil  to  protc-ct  the  fisheries  exer- 
cisint;  the  ntniosl  discretii)n  in  c.inyini;  out  their  instnutions,  payiiii; 
special  attention  to  Lord  (iranvilie's  observation  that  no  vessel  should 
be  seized  unless  it  is  e\  iiknt  and  can  be  cleail\'  iirovcd  that  the  olfense 
of  tishinj;  has  been  committed  and  that  tlie  vessel  is  cajjlured  witiiin 
three  miles  of  laiul." 

Lord  Ciiaiuille,  in  transmitting  to  Sir  John  \'oung  these 
instructions,  makes  use  of  the  following  language:  — 

"  lier  .Maji'sty's  ( "lovernniein  do  not  iloul>l  that  your  ministers  will 
aj^ree  with  them  as  to  the  propriety  of  tl-.es(,'  instructions,  and  will  yive 
corresiHindiny:  instructions  to  the  vessels  iiiijiloyed  by  them." 


These  instructions  were  again  officially  stated  by  the  Brit- 
ish minister  at  \Vasliin<4ton  to  the  Secretary  of  State  of  the 
United  States  in  a  letter  dated  June  llth,  1870. 

Ai^ain,  in  Fehruarx',  1 87 1,  Lortl  Kimberly,  Colonial  Secre- 
tai),  wrote  to  the  (io\ernor-("icneral   of  Canada  as  follows: — 

"  Tlie  exclusion  of  American  iislicrnu-n  from  rcsortiii!^  to  Canadian 
ports,  except  for  the  purpose  of  shelter  and  of  repairiii.y;  daniaines  tiierein, 
purchasing  \v(joc1,  and  of  obtainiiif^  water,  niinht  he  warranted  by  the 
letter  of  the  Treaty  of  iSiS  and  by  the  terms  of  llie  imperial  act  59 
Geor;;e  111.,  chaiUer  ,^S,  but  Her  Majesty's  (joveriiment  feel  bound  to 
state  that  it  seems  to  them  an  t-xtreme  measure,  incousistcut  with  the 
general  policy  of  the  empire,  and  tiie\'  are  disposed  to  conci-de  tliis 
jjoint  to  the  I'liited  States  Ciovernment  under  such  restri<  lions  as  may 
be  necessary  to  prevent  snni.>;,uhug,  and  to  ,i;uard  against  any  substantial 
invasion  of  the  exclusive  rigiits  of  lishing  which  may  be  reserveii  to 
Uritish  subiects." 

DuriuL;  Sir  Charles  Tupjjcr's  speech  in  the  House  of  Coni- 
nioiis  of  Canada,  April  loth,  1888,  the  followini.;  colk)quy 
took  place  regartling  the  position  taken  b\'  the  Hritish  Go\- 
ernment :  — 

".SiK  Cn.\RM:s  TriM'KU.  —  Here  is  a  dispatch  from  Downing  street, 
dated  6th  June,  1.S70  : — 

" 'Her  Majesty's  (iovermnent  are  fully  aware  that  no  step  should  be 
taken  which  should  prejudge  the  (piestion." 

'■  1  want  to  draw  the  attention  of  tiie  House  to  the  fact  that  this  was 
not  a  settled  or  concluded  (piestioji — that  it  was  not  a  (piestion  upon 
which  till'  ("lovernnienls  of  (ireat  Hritaiu  and  the  United  States  had 
agreed  or  on  which  tluy  had  arrivetl  at  a  couunon  iiUer|)retadon  ;  and  I 
want  to  draw  my  honoralile  friend's  attention  U>  the  doubt  that  Her  Ma- 
jesty's Govermnent  had  upon  the  subject.     What  do  they  say? 

"  '  Her  Maiesty's  (iovernment  are  fully  aware  that  no  steps  should  be 
taken  wliich  would  iirejudge  the  (iiiestion — what  are  Canadian  w.iters? 
(Jr  should  admit  the  right  of  the  United  States  fishermen  to  lish  within 
those  waters  except  within  the  limits  prescribed  by  the  Convention  of 
181S.' 

"  '  But  tiiey  do  not  abandon  the  hope  that  the  (piestion  of  abstract 
right  may  yet  be  .avoided  by  some  arrangement  between  Canada  and 
the  United  States,  or  that  the  limits  may  be  definitely  settled  by  arbitra- 
tion or  otherwise  ;  and  while  any  expectation  of  this  kind  exists,  they 
desire  to  avoid  all  occasions  of  dispute,  so  far  as  this  is  possible,  consist- 
ently with  the  substantial  protection  of  the  Canadian  fisheries.  With 
those  objects,  they  think  it  advisable  that  United  .States  fishermen  should 
not  be  excluded  from  anv  waters  exceiit  within  three  miles  from  the 


shore,  or  in  the  unusual  case  of  a  bav  which  is  less  than  six 


miles  w 


ide 


39 

at  its  month  but  spreads  to  a  j^roatcr  width  witiiiii.  It  will,  of  course,  be 
underst(Jod  and  e\i)laiiied  t(j  the  I'liited  Stales  G(nermiunt  that  this  lib- 
erty is  conceded  temporarily  and  without  ijrejndice  to  the  ri.:,;lit  of  C.reat 
Britain  to  fall  back  on  her  treaty  ri.niits,  if  tlie  prospect  of  an  arrange- 
ment lessens,  or  if  the  concession  is  found  to  interfere  practically  with 
the  protection  of  the  Canadian  fisheries.' 

"That  was  also  a  dispatcli  from  Lord  Granville,  June  6th,  1870.  Now, 
under  the  pressure  of  this,  as  my  honoral)le  friend  has  stated,  he 
chanjied  his  instructions  in  reference  to  tlie  ten  miles,  and  put  in  six 
miles,  and  forbade  his  officers  to  interfere  with  the  American  lishermen, 
not  as  in  the  first  instructions  lie  .y;ave,  if  they  were  within  three  miles  of 
the  UKjuth  of  the  bay,  but  only  if  they  were  within  three  miles  of  the 
shore,  and  he  says  : — 

'• '  Tntil  further  instructed,  therefore,  you  will  not  interfere  with  any 
American  tishermen  unless  found  within  three  miles  of  the  shore  or 
within  three  miles  of  a  line  drawn  across  tlie  moutli  of  a  bay  or  creek, 
wliicli.  thou.i;ii  in  parts  more  th.ui  six  miles  wide,  is  less  than  six  <;eo- 
.^raphical  miles  in  width  at  its  mouth.  In  the  case  of  any  other  b.iy,  as 
Bale  des  Chaleiirs,  for  example     *     '■      *  ' 

"The  very  bay  he  excluded  tiiem  from  was  more  tiian  ten  miles  wide. 

"  ' yon  will  not  interfere  witii  any  I'liiled  .States  fishinj;-  vessel  or 

boat  or  any  American  fisiiernien,  unless  they  are  found  within  three  miles 
of  tlie  shore.' 

■■  Mr.  Mitchi:i.i,. — I'nder  positive  instructions  from  lj).L;land,  ai4ainst 
my  representations  and  everythin.y;  else. 

"SiK  Ch.\ki.i;s  TiiM'KK.  — I  think  1  iiave  satisfied  my  honorai)le  friend 
that  as  tar  as  Her  Majesty's  Ciovernment  were  concerned,  while  they 
maintained  the  abstract  ri<;lit  under  the  treaty,  they  were  uinvillint;  to 
raise  the  question  of  bays,  and  the  result  is,  as  my  honoral)le  frieiul 
knows,  that  for  the  last  thirty-four  years,  certainly  since  1S54— and  I  will 
not  j;()  further  back  than  1S54— there  lias  been  no  practical  interference 
with  American  tishiuj;  vessels  unless  they  were  within  three  miles  of  the 
shore,  in  bays  or  elsewhere." 

When  it  is  i-cmcnibcred  tliat  our  treaty  fclations  arc  with 
the  Brilish  Govcniinent  and  not  with  Canada,  that  the  re- 
spon.sibility  of  deterniinin^;-  what  is  the  true  construction  of  a 
treaty  made  by  Her  Majesty  with  any  forei-n  power  must  re- 
main with  Her  Majesty's  Government,  that  Canadei's  claim  to 
construe  a  treaty  ne;4otiated  witli  the  United  States  is  admit- 
ted neither  by  the  United  States  nor  by  Great  l^ritain,  it  must 
be  conceded  that  the  course  of  the  Britisli  Government  in  re- 
gard to  tlie  headland  theorx'  shows  in  itself  that  the  claim  of 
Canada  lias  no  substantial  foundation. 

It  is  evident,  therefore,  that  the  headland  doctrine  asserted 


40 


by  Canada  was  an  aftcr-thoui^ht,  rcpudiatccl  both  times  that 
the  question  came  before  an  umpire  competent  to  pass  upon 
it,  that  the  Hritish  (jo\ernment  has  tlcch'netl  to  enforce  it.  and 
would  yield  the  cjuestion  in  our  favor  if  our  position  was 
maintained  with  firmness.  In  all  justice  and  fairness,  how- 
ever, the  United  States  can  and  should  maintain  before  the 
world  its  fishery  rij^hts  in  the  ba\'s  of  Canada  more  than  six 
miles  in  width. 

With  no  better  claim  on  the  part  of  Canatia  our  fishing;  ves- 
sels ha\e  I)een  denied  their  commercial  pri\ile<j[es  under  the 
concurrent  action  of  the  two  countries  in  1S30,  aiid  denietl 
the  riL,dit  to  transport  their  catch  under  the  twentj'-ninth  clause 
of  the  Treat}'  of  187 1. 

In  1870,  more  than  fifty  \-ears  after  the  Treat)-  of  1818,  and 
forty  years  after  all  the  restrictions  on  the  commercial  inter- 
cour.se  between  the  United  States  and  British  North  .America 
were  abolished,  Can.ula  for  the  first  time  set  up  the  claim  that 
the  .American  vessels  hatl  no  rit^ht  to  buy  bait  in  an}-  of  the 
baj'S  or  harbors  of  Canada.  Pre\ious  t(}  1870,  and  during 
the  period  from  1877  to  1886,  our  fishing  vessels  continued  to 
bu\'  bait  in  Canadian  ports  without  interference. 

The  Ilalifa.v  Commission  in  1 877  decidetl  that  buxing  ixiit 
was  a  commercial  i)ri\iley,"e,  and  declined  to  award  damages 
in  favor  of  Canada,  on  the  ground  that  it  was  not  an  incident 
of  the  treat}-  of  1871. 

"judicial  aiuliorily,"  says  Mr.  I'lulps  in  iiis  letter  of  JuiU'  2cl,  1SS6,  to 
Lord  Roseliery,  upon  lliis  question,  "is  to  the  same  eftecl.  Tliat  tlieimr- 
chase  of  bait  by  American  fishernjen  in  the  provinc:ial  ports  has  been  a 
conuiion  practice  and  is  well  known.  Hut  in  no  case.  S(j  far  as  I  can 
ascertain,  has  a  sei/nre  of  an  .\merican  vessel  e\er  been  enforced  on 
the  i;roiuul  of  tiie  purciiase  of  bait,  or  of  any  other  snpplies.  On  tiie 
liearini;'  before  the  1  lalif ix  Commission  in  1S77.  tliis  (|nestioii  was  dis- 
cussed and  no  case  could  be  i)rkiduieil  of  any  such  condemnation. 
Vessels  shown  to  have  been  conilemned  were  in  all  case.s  adjudged 
guilty,  either  of  fishini;  or  preparing;  to  fish  within  the  proiiibited  limit. 
And  in  the  case  of  the  "  W'iiite  I'awn,"  tried  in  the  Admiralty  Court  of 
New  Mnmswick,  betore  judge  Ilazen,  in  1.S70,  1  understand  it  to  have 
been  distinctly  held  that  the  purchase  of  bait,  imless  proved  to  liave 
been  in  the  preparation  for  illegal  lishing,  was  not  a  violation  of  the 
treaty,  nor  of  any  existing  law,  and  aHbrded  no  gnnuul  for  proceedin.g 
against  the  vessel." 


41 

Judge  Hazcn,  in  the  "  W'hite  I\i\vn  "  case,  said  : — 

"Assuming  tliat  the  fuel  tliat  siiili  piircliase  establishes  a  prepariiis;  to 
lisii,  whicii  I  do  not  admit,  1  tiiiiik  before  a  torfeiture  can  l)e  incurred  it 
must  be  shown  that  the  preparations  were  for  an  illejijal  fisiiinj;;  in  Ikitisii 
waters." 

The  first  libel  against  an)-  American  fishing  vessel  for  bii}'- 
ing  bait  in  port  was  in  1870.  The  constrtiction  b\'  the  Hali- 
fax Commission  that  the  bti\ing  of  bait  is  a  commercial  privi- 
lege was  in  1S77,  and  from  1877  to  1886  American  fishing 
vessels  bought  bait  in  Canadian  ports  witlioiit  interference. 
In  1S86  the  Canadians  seized  the  schooner  "  I)a\id  J.  Adams  " 
for  purchasing  bait  in  Annap(^lis  Basin,  Nova  Scotia,  and  sent 
her  to  St.  John,  X.  W.,  for  trial.  It  was  "  not  prelentled  that 
the  vessel  had  been  engaged  in  fishing  or  was  intending  to  fish 
in  the  prohibited  waters,  or  that  it  had  done  or  was  intending 
to  do  any  other  injurious  act." 

Mr.  Hax-ard,  in  his  letter  of  May  10th,  l88(3,  to  Sir  Lionel 
West,  referring  to  this  case,  said  : — 

"  I  ask  you  to  consider  tlie  results  of  exchulinjj;  Aineiiian  vessels  duly 
possessed  of  ])ermits  from  their  own  t;overinnent  to  touch  and  trade  at 
Canadian  ports,  as  well  as  to  en.i;a.s;e  in  deep-sea  fishin>;,  from  i-xercising 
freely  tiie  same  customary  and  reasonable  ri.niUs  and  |)ri\ilc.:.;es  of  trade 
in  the  ports  of  the  Hritish  colonies  as  are  fieely  allov\ed  to  lirilish  \essels 
in  all  the  pt)rls  of  the  I'nited  Stales  under  tin;  laws  and  re.^ulalioiis  to 
which  1  have  ailverted." 

"Anion.!.;  these  customary  rii;hts  and  pri\ilei;es  may  \>v  enumerated 
the  pmciiase  of  ship  supplies  of  every  nature,  makiui;  ri'i^airs,  the  siiip- 
meiit  of  crews  in  whole  or  in  part,  ami  the  |iurcliase  of  ice  and  bait  for 
use  in  deep-sea  (ishing.  ConcurrentU  these  usual  rational  and  conven- 
ient privileges  are  freely  extended  to  and  are  fully  enjoyeil  by  the  Cana- 
dian merchant  marine  of  all  occupations,  inchKling  tishernKii,  in  the 
ports  of  the  I'nited  States.  Tiie  (|uestion  therefore  arises  whether  such 
a  construction  is  admissii)le  as  would  convert  the  Treaty  of  iSiS  from 
being  an  instrumentality  for  the  protection  of  the  inshore  fisheries  along 
the  tlesc-ribed  parts  of  tlie  r>ritish-.\nieri(  an  coast  into  a  |)retext  or  nie.iiis 
of  oijstructing  the  business  ot"  deep-sea  fishing  by  citi/iiis  of  the  I'nited 
States,  and  of  interrupting  and  destroying  the  commercial  intercourse 
that  since  the  Treaty  of  i.Si,S,  .uui  indei)endent  of  any  treaty  whate\i'r, 
has  grown  up  and  now  exists  under  the  concurrent  and  friendly  law  s  and 
mercantile  regulations  of  the  respective  countries. 

"  I  may  recall  to  your  attention  the  fact  that  a  propcjsition  to  exclude 
the  vessels  of  the  United  States  engaged  in  fishing  fn^u  carrviini   also 


4-^ 

)iR-r(  liandisf  was  macli-  l)y  tin-  IJritisli  lU'^otiatois,  ami  was  ahaiuloiK-d. 
This  I'ait  would  sit  in  cli  ail\  to  indicate  that  the  hiisiiuss  ot  lisliint;  did 
lint  thfii  and  docs  not  now  dis(iiialitV  a  vussi-l  hoiii  also  trading  in  the 
ri'.L;ul.ir  ports  ot"  eiitix." 


Tluis  in  \i()I;ili()ii  of  treat)'  and  other  obljoations.aiul  wliile 
Canadian  fisliiiif^  vessels  have  been  perniiltetl  in  otir  ports 
without  interference  to  purchase  l)ait  and  siippHes,  Canada  has 
denied  the  riij[ht  to  American  fisliino"  \essels  to  purchase  bait 
and  su[)phes. 

The  riolit  of  fishinpf  vessels,  under  the  Treat}-  of  1818,  to 
enter  Canadian  bays  and  liarbors  for  "  wooil  ami  water," 
which  plainh'  means,  as  these  words  were  used  in  iSiS,  fuel 
and  water,  has  been  taken  awa\-  b\-  den\-ino  them  the  ri^ht  to 
purchase  coal,  the  fuel  of  tishinj4"  \essels  of  the  [)resent  day. 

While  Canada,  under  the  twenty-ninth  clause  of  the  Treaty 
of  1S71,  has  been  makin;^  shijiments  in  bond  to  and  from 
Canaila  throuoh  the  United  States,  estimated  b\-  I'resident 
Cle\eland,  in  his  message  of  Aut^ust  23d,  188.8,  to  CoiiL^ress, 
to  have  amounted  in  \alue  for  the  past  six  \'ears  to  about 
$270,000,000,  the  fishin;4'  \essels  of  the  United  States  have 
not  been  allowed  to  ship,  inuler  the  same  treat}'  proxision, 
their  catch  through  Canada  to  the  United  States  from  Cana- 
dian ports. 

Where  pretexts  for  depriving'  American  \'essels  of  their 
fishino-  and  commercial  pri\ileoes  luuler  strained  constn,ictions 
w ere*  not  afforded,  Canada  has  endea\ored  so  to  harass  and 
anno}-  American  vessels  in  the  exercise  of  tlieir  admitted 
treat}'  right  to  enter  ba\'s  and  harbors  for  the  purposes  of 
shelter  and  repairing  damages,  and  of  obtaining  w  ood  and 
water,  as  to  make  these  rights  worthless. 

An  examination  of  the  list  of  American  vessels  seized, 
detained,  or  warned  off  from  Canadian  ports  in  the  years  1886 
and  1887  accompan}'ing  the  Senate  Document  113,  of  the 
first  session  of  the  Fiftieth  Congress,  shows  that  the  "  Helen 
F.  Tredick"was  refused  shelter  and  water;  the  "John  W'. 
Bra\' "  was  refused  shelter  and  supplies ;  tlie  "  Caroline 
Vought"  and  "  Christina  r^Usworth "  refused  wood  and 
water;    the    "  Xo\eIty  "    was     refused    coal    and    water;    the 


43 


"Sldwcll  Shcrnijui."  "  Walter  L.  Rich,"  "  Xcwcll  B.  Ilawes," 
"  Xcllic  M.  Siiou,"  "  (icrtriidc  Siiiunicrs,"  "Charles  R. 
\Va,shin<,rt<in."  "John  IM.  liall.""  "J.-hii  Nye."  "Asa  II. 
rineie,"  "Nathan  Clea\es,"  "  l*"rank  (j.  Rich,"  "  luiinia  O. 
Curtes,"  "Charles  F.  Atwood,"  "Gertie  M.xy,"  "  Ahhie  M. 
Deerin^,"  "Cora  Louis,"  "  I'.beii  D.ile,"  "Charles  Haskell," 
"  Willie  Parkhaiii,"  "  luldie  Da\  idsoii,"  "  CxMiosure,"  "  Lottie 
1""..  Hopkins,"  "Andrew  Burnhani,"  "Harry  G.  French," 
"Col.  J.  II.  French,"  "  W.  II.  Wellint,non."  "Ralph  Hoi;- 
don,"  "Ilattie  ICvelyn,"  "  I-Jiiina  W.  Brown,"  "Mary  II. 
TluHiias,"  "Ilattie  B.  W'est,"  "  Fthel  Maud,"  were  refused 
food  or  proxisions  or  sup|-,lies  ;  the  "  Mar}'  K.  Whorf "  was 
not  permitted  to  make  re])airs;  and  the  "Sarah  B.  Putnam" 
and  "Alice  I'.  Ili^i^ins"  were  dri>en  from  port  in   storms. 

The  "  MoUie  Adams  "  was  driven  off  into  a  storm  w  ithout 
sufficient  food,  after  enterin;,;  the  harbor  of  Mai  Peijue  to  land 
and  after  she  had  safeh-  landed  a  crew  of  seventeen  ship- 
wrecked British  sailors  she  had  j^one  out  of  her  wa\- to  rescue 
and  whom  she  had  icd  for  three  da\-s.  Tlie  captain  of  the 
Canailian  cruiser  "  Critic,"  fully  informed  of  the  humane  action 
of  the  Mollie  Adams  and  her  needs,  refused  assistance,  and 
threatened  to  seize  her  if  she  landed  an\-  of  the  wrecked  ma- 
terial on  board. 

There  are  other  cases  reported  where  vessels  seekini;"  shelter 
were  driven  to  sea  before  the  storm  hatl  abated,  but  the  cases 
refened  to  sufficiently  show  the  flagrant  violations  by  Canada 
of  treat)'  and  all  other  oblij^ations  in  a  spirit  of  barbarism  and 
\iciousness  unwortlu'  of  a  civilized  nation. 

Without  commenting;  upon  the  action  of  Captain  Qui;j[le\' 
of  the  Canadian  cutter  "Terror"  in  lowerini;  the  flag  of  the 
United  States  fishing  schooner  "  Marit)n  Grimes."  or  upon  the 
constant  and  arrogant  stopping  and  boarding  of  American 
fishing  vessels,  of  which  over  two  thousand  cases  were  reported 
in  two  jears,  it  cannot  be  said  that  the  language  of  Hon. 
Daniel  Manning,  in  his  letter  as  Secretary  of  the  Treasury,  of 
Februar\-  5th,  1S87,  to  the  chairman  of  the  House  Committee 
of  Foreign  Affairs,  is  either  unjust  or  too  .severe  where  he  re- 
fers  to  "  the    inhumanit\"  and    brutalitx-   with   w  hich    certain 


44 

Canadian    officials    treated    defenseless    American    fisliermen 

during  the   last   summer,   even   tliose   who   had   [^one   out  of 

their  \va\'  to   rescue   Canailian   sailors,  ami    ha\in<^  entered  a 

Canatlian  l)a\-  to  safely  land  those  they  had  saved  atteinptetl 

to  procure  food  to  sustain  their  own  lives." 

The  acts  to  w  hich  the  Canadians  have  been  dri\  en  1)\-  adopt- 

iiiL;'  a  strained  construction  of  oui-  treaty  ri_L;hts  are  as  absurd 

as  they  are  barbarous  and  inhuman.     Mr.  I'helps,  in  his  letter 

of  June  2d,  iSSf),  to  Lord   Rosebery,  said: — 

"Siicli  a  liUral  coiislniclion  is  hrsl  ivtuttd  by  cDiisidiTinn  its  prepos- 
terous coiisrciuciu'is.  If  a  vessel  enters  a  port  to  jinst  a  letter,  or  send 
a  teli,i;rain,  or  buy  a  newspaper,  to  obtain  a  plivsician,  or  even  to  leiul 
assistance  to  tin-  inhabitants  in  lire,  tlood,  or  pestilence,  it  would,  upon 
this  constrnction,  be  iield  to  violate  the  treaty  stipulations  maintained 
bitween  two  enli^litt  lud  maritime  and  friendly  nations  whose  ports  are 
hxely  open  to  each  other  in  all  i)laces  and  under  all  other  circum- 
stances." 

He  mit^ht  iia\e  added  : — 

"(iood  faith  clin,!.;s  to  the  s/>in7,  and  fraud  to  the  hllcr  of  the  con- 
vention." 

Phillimore's  Int.  Law,  \oI.  ii.,  page  9/. 

Vet  John  S.  D.  Thompson,  the  Canadian  Minister  oj  Justice, 
ora\el\-  wrote  to  Lord  Lansdowne,  on  July  22tl,  18S6. 

"Thai  which  .Mi.  I'helps  calls  literal  interpretation  is  by  no  means  so 
preposterous  as  he  suj;.;;ests  when  the  pur|K)se  and  object  of  the  treaty 
ccjine  to  be  considered.  It  was  necessary  to  keep  out  forei.t;n  fishint; 
vessels,  r.vrcpliii^ii  in  casrs  of'  dire  ucccssity,  no  matter  under  w  hat  pre- 
text they  mi.i;ht  desire  to  come  in.  'I  he  fisheries  could  not  be  preserved 
to  our  jieojile  if  every  one  of  the  I'nili d  States  fishiu};  vessels  that  are 
accustt)med  to  swarm  alonj;  our  coasts  could  claim  the  riL^ht  to  enter  our 
harbors  'to  post  a  letter  or  send  a  teK-i;ram,  or  buy  a  newspaper  ;  to 
obtain  a  pinsician  in  case  of  illness,  or  a  sur.neon  in  case  of  accident  ;  t() 
land  or  Itrius; olf  a  passen.^er,  or  even  to  lend  as>istance  to  the  inhabi- 
tants in  tire,  lK)od,  or  pestilence,"  or  to  '  buy  meiiicine '  or  to  'purchase 
a  new  rope.'  The  slij;hest  accpiaintance  with  the  nejjotiations  which  led 
to  the  'i'reaty  of  iSiS  induces  the  belief  that  if  the  I'nited  .States  nej.jo- 
tiators  had  sn.i;i;ested  these  as  purposes  for  which  their  vessels  should  be 
allowed  to  eiUer  our  waters,  the  propo.sal  would  have  been  rejected  as 
'  preposterous.'  " 

Prexiotis  to  this  time   Mr.  Bayard's  public  and  official  ex- 
pressions in   relation  to  the  cases  brought  under  his  official 


45 


notice  iiulicatcd  ;iii  intt-'iUiDii  ti»  insist  ii])(»ii  the  full  and  unin- 
tcrrnptcd  cnjoNincnl  of  our  fishing'  ami  commercial  rights  in 
Canailiaii  waters  and  |)orts. 

In  his  letter  to  Sir  Lionel  West  on  Mav  29t]i,  lSS6,  refcr- 
rin<;^  to  a  hill  authori/ing  the  forcihle  search,  seizure,  and  for- 
feiture of  an)-  foi-eii;ii  vessel  fmuul  within  any  harbor  in 
Canatla.  or  ho\ering  within  three  marine  miles  of  the  coasts, 
bays,  or  creeks  of  Canada,  where  such  vessel  lias  eiitertid 
such  uateis  for  an)'  purjjose  not  pro\iiIe<l  lor  b)-  the  laws  of 
Canada,  the  laws  of  Nations,  oi-  an)'  treat)'  or  convention 
then  in  foice,  Mr.  Ha)'ard,  said: — 

"Such  i)ni(XLclini;s  I  conceive  to  be  flanranlly  violative  of  tlie  recip- 
rocal coiiitiKTcial  prix  ilcL;L-s  to  which  ( iti/ens  of  the  I'uiti-d  States  an- 
lawriilly  nititlcd  under  llie  statutes  of  (Ireat  riritaiii  aud  tlie  wi'll  detuieil 
and  publicly  proclaimed  authority  of  both  countries,  besides  beini;,  in 
respect  ol"  the  existini;  con\-entious  helueen  the  tun  countries,  an  as- 
smnption  of  iurisdii:tion  entirely  unwarrantetl  and  vhich  is  wholly  denied 
by  the  liiited  States." 

Later  Mr.  Bayartl  said: — 

On  June  7th,  iS.Sfi  :  "1  earnestly  jn'olest  a.L;ainst  this  unwarranted 
withholdiui;  of  lawful  conniieicial  privilei;es  from  an  American  vessel 
aiul  her  owners,  and  for  the  loss  and  dama.m-  C()nse(|iient  thereon  the 
iiiovernnient  of  Great  britain  will  be  held  liable." 

On  bily  loth,  iS.S6  :  "  Aj^ainst  this  treatment  I  make  instant  and  formal 
protest  as  an  imwarranted  interpretation  and  application  of  the  treaty  by 
the  ofticers  nf  the  Dominion  of  Canada  ami  the  provinci'  of  N'cjva  Scotia, 
as  an  infraction  of  the  laws  of  commercial  and  maritime  intercourse  e.\- 
istinj;  between  the  two  countries  andas  a  violation  of  lios|)italit\-,  and  for 
any  loss  or  injury  resultin.^  therefrom  the  i;()\erimienl  of  Her  iiritannic 
Majesty  will  be  held  liable." 

On  jul\- ,V)th,  iSS6  :  "  These  are  Ila.i;rant  violations  of  treaty  ritjlits  of 
their  citizens  tor  which  the  I  'nited  States  expect  prompt  remedial  action 
by  Her  Majesty's  government,  and  1  have  to  ask  that  such  instructions 
may  be  issued  forthwith  to  the  proxincial  olTuials  of  Newfoundland  and 
of  the  Magdalen  Islands  as  will  cause  the  treaty  rights  of  citizens  (jf  the 
United  States  to  be  duly  respected.  For  the  losses  occasioned  in  tiie 
two  cases  I  have  mentioned,  compensation  will  hereafter  be  expected 
from  Her  Majesty's  Govermiient  when  the  amount  shall  have  been  accu- 
rately ascertained." 

On  August  gth,  i886  :  "  The  hospitality  which  all  civilized  nations  jire- 
.scribe  lias  thus  been  violated  and  the  stipulations  of  a  treaty  grossly  in- 
fracted." 

On  August  iSth,  i886:  "The  firing  of  a  gun  across  their  bows  was  a 
most  unusual  and  wholly  uncalled  for  exhibition  of  hostility,  and  equally 


46 

so  was  tlif  placing  of  aniu'd  nu-ii  on  Koard  llu'  lawful  and  pfaccfiil  craft 
of  a  fiiciidly  nalii)ii." 

<  )n  Scptemher  2.^(1,  iSS6  :  "An  illustration  of  tlir  vexations  spirit  in 
wliifli  tlif  odiceis  of  tin.'  dominion  o(  C'anada  appear  to  seek  to  penali/i- 
and  oppn-ss  those  fisliinj,^  vessels  of  the  I'nited  States  lawfully  enj;ai;ecl 
in  (ishiii};  which  from  any  cause  are  brou.ijht  within  their  reach." 

<  )n  Novemher  6th,  I.SS6;  "if  the  unfriendly  an<l  unjust  system  of 
which  these  cases  now  pri'sented  are  a  part,  is  sustained  by  Her  Majes- 
ty's (iovernmeiit,  serious  results  will  almost  necessarily  ensue,  };reat  as 
the  desire  of  this  Government  is  to  maintain  the  relations  of  i^ood  nei,i;h- 
borhood." 

These  bcin;4  the  rights  of  the  United  States  in  the  North 
Atlantic  fislieries,  and  these  the  clainis  and  pretexts  set  up  by 
Canada,  and  tliis  the  resuhite  position  taken  b)'  the  present 
Achninistration  in  the  year  iSSf),  and  previous  tlicreto,  with 
reij^ard  to  tlie  iniwarranted  sel/.ines  and  annoyances  to  our 
tlshino-  vess(;ls,  it  would  nalinaliy  I)e  assiniied  that  no  treaty 
attempting  to  settle  the  dilTerences  concerning  our  tisher\- 
rights  would  subsecpiently  be  proposcil  or  assented  to  b\-  the 
same  Administration  that  tliil  not  restrict  the  headland  theorj- 
of  Canaila  to  baj-s  of  width  less  tlian  six  miles,  that  did  not 
confirm  the  right  of  our  fishing  vessels  to  buy  bait  and  sup- 
plies and  exercise  other  ordinary  commercial  rights  in  Cana- 
dian ports,  and  to  transship  their  catch  under  the  provisions 
of  the  Treaty  of  1S71,  and  that  ilid  not  fully  pro\ide  indem- 
nity for  the  vessels  illegalK^  seized  or  deprived  of  treaty  rights. 


The  Cliaiiiberlaiii-Bayard  Treaty. 

Wherkas  differences  have  arisen  concerning  the  interpre- 
tation of  i\rticle  I.  of  the  Coiuention  of  October  20th,  iSiS, 
the  United  States  of  America  and  Her  Majesty  the  Queen  of 
the  United  Kingdom  of  Great  Britain  and  Ireland,  being 
mutuall)-  desirous  of  remo\ing  all  causes  of  misunderstanding 
in  relation  thereto,  anil  of  promoting  friendly  intercourse  antl 
irood  neighborhood  between  the  United  States  and  the  Pos- 
sessions  of  Her  Majesty  in  North  America,  have  resolved  to 
conclude  a  Treaty  to  that  end,  and  have  named  as  their  Pleni- 
potentiaries, that  is  to  sa)' : — 

The  President  of    the   United  States  ;   Thomas    F.  Bayard, 


47 


am 


IJ 


lines 


Sccrctai)' (if  State;  William  L.  I'utiiAm,  of  Maine 
H.  Ant^ell.  of  Michigan  ; 

;\.iul  ller  Majest)' the  Queen  of  tin  rnited  Kinp^dom  of 
Great  l^ritain  and  Iielaiul;  the  Ri^ht  I  loiioiajjle  Joseph 
Chamberlain,  M.  1'.;  the  Ml. unable  Sir  Lionel  Sackvi lie  West, 
K.C.  M.Ci. ;  Iler  Hritanm'c  Majesty's  l^n\'o\'  l'"-\traortlinary 
and  Minister  Plenipotentiar)'  to  the  United  States  of  America  ; 
and  Sir  Charles  Tiipper,  G.  C.  M.  G.,  C.  H.,  Minister  of  I*'i- 
nance   of  the  Dominion  of  Canada; 

Who,  lia\  ini:^  coinnnmicated  to  each  other  their  respecti\e 
I'^ull  Powers,  found  in  j^ood  and  due  form,  liave  agreed  upon 
the  R)llo\vin_Lj  articles: — 

AR'riCLh:    I. 

The  II iL;h  Contracting;"  Pai'tics  aL;ree  to  appoint  a  nnxetl 
Commission  to  delimit,  in  the  manner  pro\-iilcil  in  this  Treat)', 
the  British  waters,  baj's,  creeks,  and  harbors  of  the  coasts  of 
Canada  and  of  Newfoundland,  as  to  which  the  United  States, 
b\-  Article  I.  of  the  Convention  of  October  .:oth,  18  iS,  between 

no u need   fore\er  an\- 


the  United  States  and   Great  liritain,  rei 
libert\'  to  take,  dr\',  or  cure  fish. 


ARTICL1-:  II. 

The  Connnission  shall  consist  of  two  connnissioners  to  be 
named  b\'  Her  Britannic  Majest}',  and  of  two  commissioners 
to  be  named  b}'  the  Presiileiit  of  the  United  States,  without 
delay,  after  the  exchange  of  ratifications  of  this  Treat)-. 

The  Commission  shall  meet  and  complete  the  delimitation 
as  .soon  as  possible  thereafter. 

In  case  of  the  death,  absence,  ov  incapacity  of  any  com- 
missioner, or  in  the  e\ent  of  any  commissioner  omitting  or 
ceasing  to  act  as  such,  the  President  of  the  United  States  or 
Her  Britannic  Majest)-  respectively  shall  forthwith  name  an- 
other person  to  act  as  commissioner  instead  of  the  connnis- 
sioner  original!)'  named. 

ARTICLE  III. 

The  delimitation  referred  to  in  Article  I.  of  this  Treaty 
shall  be  marked  upon  British  Admiralt)-  charts  by  a  series  of 


48 

lines  regularly  minihi'ivd  aiul  duly  dcscrilx-d.  The  charts  so 
inarkid  shall,  on  tlu-  tcrniiuatioii  n\'  the  work  dt"  the  Cniii- 
niissioii,  i)e  si'i^iied  by  the  conimissioneis  in  iiuailiuplieate,  one 
cop)'  whereof  shall  be  delivered  to  the  Secretary  of  State  of 
the  United  States,  and  three  copies  to  ller  I\Iajest\'s  (loxcrn- 
niiMil.  Tlu'  delimitation  shall  bi'  niadi'  in  tlu'  Idllowinj;'  nianiuT, 
and  shall  be  acceptid  b>-  both  the  lli^h  Contractin<4'  Parties  as 
a|)plicable  for  all  ])Uiposes  under  Article  I.  of  the  Convention 
of  October  20th,  iSiS,  between  the  I'nitrd  States  and  Cireat 
Britain. 

The  three  marine  miles  mentioneil  in  Article  I.  of  the  C'on- 
\enlion  of  ()ctober  JOth,  iSiS,  shall  be  measured  seaward 
from  low-water  mark;  but  at  everv  ba\',  creek,  or  harbor  not 
otherwise  specially  provided  lor  in  this  Treat)-  such  three 
marine  miles  shall  be  measured  seaward  from  a  straight  line 
diawn  across  the  ba\',  cn'ek,  or  harbor  in  the  part  lu-arest  the 
entrance  at  the  fu'st  point  where  the  width  does  not  exceed 
ten  marine  miles. 

ARTICLl-:  W. 

i\t  or  near  the  following;  ba\s  the  limits  of  exclusion  under 
Article  I.  of  the  Convention  of  October  20th,  iSi8,  at  points 
more  than  three  marine  miles  from  low -water  mark  shall  be 
established  by  the  follow  ins^  lines.  namel\- : — 

At  the  Baie  des  Chaleurs  the  line  from  the  Lij^ht  at  l^irch 
Point  on  Miscou  Island  to  Maccpiereau  I'oint  Lii^ht ;  at  the 
Bay  of  Miramichi,  the  line  from  the  Light  at  Point  Ivscumi- 
nac  to  the  Liirht  on  the  l^astern  Point  of  Tabisintac  Gull\-; 
at  l'><jmont  iVdy,  in  Prince  luhvard  Island,  the  line  from  the 
Lii^ht  at  Cap  Iv^miont  to  the  Light  at  West  Point;  and  off 
St.  Ann's  B  lie  Province  of  Nova  Scotia,  the  line  from 

Cape  Sp  lie  Light  at  Point  vXconi. 

At  ]  J  Bay,  in  Newfoundland,  the  line  from  Connaigre 

Head  to  ^.le  Light  on  the  south-easterly  end  of  l^runet  Island, 
thence  to  I*"ortune  Head  ;  at  Sir  Charles  Hamilton  Sound,  the 
line  from  the  south-east  point  of  Cape  Logo  to  White  Island, 
thence  to  the  north  end  of  Peckford  Island,  and  from  the 
south  end  of  Peckford  Island  to  the  East  Headland  of  Ragged 
Harbor. 


49 

At  or  near  the  f(tIK)\viiit;  l)a\'s  the  limits  of  exclusion  shall 
be  tliiee  maiiiie  tuiles  seawaid  iVoin  the  tollouin^  lines,  natiie- 

At  or  near  Harrini;lon  M.iy,  in  No\'a  Scotia,  tiie  line  from 
the  Li}.jlit  on  Stoildard  Island  to  the  Lij^lit  on  the  south  point 
(^f  Cape  Sable,  theiue  to  the  Li.nht  at  Haccaro  Point;  al 
Chedabuct')  and  St.  Peter's  Ha\s,  tlu'  liiu-  from  Cranberry' 
Island  Lit^ht  to  (iieen  Island  Li^dit,  thence  to  Point  Roiilji' ; 
at  Mira  Ha\',  the  line:  iVoin  the  l.iL;ht  on  the  east  point  ot 
Scatari  Island  to  the  norlh-easlerl)'  point  of  Cape  Morien  ; 
and  at  Placentia  Hay,  in  \e\\ foundlanil,  tin,-  line  from  Latinc 
Point,  on  the  eastern  mainland  shore,  to  the  most  soiitherl)' 
point  of  Red  Island,  thence  by  the  most  southerly  point  of 
Mcrasheen  Island  to  the  mainland. 

Lon<:  Island  and  Hr\-er  Islaiul,  at  St.  Mar\"s  ]ia\-  in  .\o\a 
Scotia,  shall,  for  the  purpose  of  ilelimitation,  be  taken  as  the 
coasts  of  such  l)a\'. 

articlp:  v. 

Nothin;^  in  this  Tieat\-  shall  be  construeil  to  include  within 
the  common  waters  any  such  interior  portions  of  an\'  bays, 
creeks,  or  harbors  as  cannot  be  reached  from  the  sea  without 
passinij  witliin  the  three  marine  miles  mentioned  in  Article  I. 
of  the  Coiuention  of  (October  20th,  iSiS. 

articlp:  VI. 

The  commissioners  shall  from  time  to  time  report  to  each 
of  the  IIii,di  Contracting;"  Parties,  such  lines  as  lhe\-  may  ha\e 
ai^reed  upon,  numbered,  described,  and  marked  as  herein  pro- 
videtl,  with  quadrui)licate  charts  theret)f ;  which  lines  so  re- 
ported shall  forthwith  from  time  to  time  be  simultaneously 
proclaimed  by  the  High  Contracting  Parties,  and  be  binding 
after  tNvo  months  from  such  proclamation. 

ARTICLE   VII. 

Anv  disagreement  of  the  commissioi.ers  shall  forthw  ith  be 
referred  to  an  umpire  .selected  by  the  Secretary  of  State  of 
the  United  States  and  Her  liritannic  Majesty's  Minister  at 
Washington  ;  and  his  decision  shall  be  final. 


4 


50 

ARTICLI-:    VIII. 

Kach  of  the  1  Ii,L;ii  Contiactiii<;  Parties  shall  pay  its  own  com- 
missioners and  officers.  All  other  expenses  jointly  incurred 
in  connection  with  the  performance  of  tlie  work,  includinjjj 
conipensati«>n  to  the  umpire,  shall  he  paitl  l)\-  the  Hiijh  Con- 
tracting I'arties  in  eipial  moieties. 

ARTICLl-:    IX. 

Nothing  in  this  treat)-  shall  interrupt  or  affect  the  free  na\  i- 
tiation  of  the  Strait  of  Canso  bN-  fishinir  ves.sels  of  the  United 
States. 

ARTICLE  X. 

United  States  fisliing  \essels  entering  the  bays  or  harbors 
referred  to  in  Article  1.  of  this  Treat}-  shall  conform  to  harbor 
regulations  c»^>mmon  to  them  and  to  fishing  \essels  of  Canada 
or  of  Newfoundland. 

They  need  not  report,  enter,  or  clear,  wJJen  putting  into 
such  bays  or  harbors  for  shelter  <)r  repairing  damages,  nor 
when  putting  into  the  same,  outside  the  limits  of  established 
ports  of  cntr\',  for  the  purpose  of  purchasing  wood  or  of  ob- 
taining water;  except  that  an\-  such  \essel  remaining  more 
than  twentv-four  hours,  e.xclusi\e  of  Sundavs  antl  legal  holi- 
days,  within  an\-  such  port,  or  communicating  with  the  shore 
therein,  may  be  required  to  report,  enter,  or  clear;  and  no 
vessel  shall  be  excused  hereby  from  giving  dui:  information  to 
•boarding  officers. 

They  shall  not  be  liable  in  any  such  bays  or  harbors  for 
compulsory  pilotage;  nor,  when  therein  for  the  purpose  of 
shelter,  of  repairing  damages,  of  i)urchasing  wood,  or  of  ob- 
taining water,  shall  the)'  be  liable  for  harbor  dues,  tonnage 
dues,  buoy  dues,  light  dues,  or  other  similar  dues ;  but  this 
enumeratittn  shall  not  permit  other  charges  inconsistent  with 
the  CFijoymen*  of  the  liberties  reserved  or  secured  by  the 
Convention  of  October  20th,  i8i8. 

ARTICL1-:  XI. 

United  States  fishing  ves.sels  entering  the  ports,  bays,  anil 
harbors  of  the  Eastern  and  Northeastern  coasts  of  Canada  i»r 


t 


51 

of  the  coasts  of  Ncwfoumllaiul  under  stress  of  weather  or 
otlicr  casnalt}'  may  uiiloaci,  reload,  transship,  or  sell,  subject  to 
customs  laws  and  re<julations,  all  fisii  on  board,  when  such 
unloadin*,',  transshipment,  or  sale  is  made  necessary  as  inci- 
dental to  repairs,  antl  may  replenish  outfits,  provisions,  and 
supplies  damaged  or  lost  by  disaster;  and  in  case  of  death  or 
sickness  shall  be  allowed  all  needful  facilities,  including  the 
shipping  of  crews. 

Licenses  to  purchase  in  established  ])orts  of  entry  of  the 
aforesaid  coasts  of  Canada  or  of  Newfoundland,  for  the  \v  u.e- 
ward  voyage,  such  i)rovisions  and  supplies  as  arc  ordi.\irily 
sold  to  trading  vessels,  shall  be  granted  to  United  States  fish- 
ing vessels  in  sucii  ports,  promptls-  upon  application  and  with- 
out charge ;  and  such  vessels  having  obtained  licenses  in  the 
manner  aforesaid,  shall  also  be  accorded  upon  all  occasions 
such  facilities  for  the  ])urchase  of  casual  or  needful  provisions 
and  supplies  as  are  onlinarily  granted  to  the  trading  vessels: 
but  such  pro\isions  or  supplies  shall  not  be  obtained  by 
barter,  nor  purchased  for  re-sale  or  traffic. 

ARTICLI':  XII. 

Fishitig  vessels  of  Canada  and  Newfouiullanil  shall  have 
on  the  Atlantic  coast  of  the  United  States  all  the  j)rivileges 
reserved  anil  secured  b\-  this  treaty  to  United  States  fishing 
vessels  in  the  aforesaid  waters  of  Canada  and   Newfouiulland. 


ARTICL1-:  XIII, 

The  Secretary  of  the  Treasurx'  of  the  Unitetl  States  shall 
make  regulations  pro\iding  for  the  consp" -uous  exhibition  by 
e\er\'  United  States  fishing  \es.scl,  of  its  official  number  on 
each  bow  ;  and  any  such  ves.sel,  required  by  law  to  have  an 
official  number,  and  failing  to  comply  w  ith  such  regulations, 
shall  not  be  entitletl  to  the  licen.ses  provided  for  in  this 
Treaty. 

Such  reguLitions  shall  be  communicated  to  I  ler  Majest)'s 
(iovernment  previously  to  their  taking  effect. 


52 

ARTICLE  XIV. 

The  penalties  for  unlawfully  fis!iin<:j  in  the  waters,  baj's, 
creeks,  and  harbors  referred  to  in  Article  I.  of  this  Treat}-,  may 
extend  to  forfeiture  of  the  boat  or  vessel  and  appurtenances, 
and  also  of  the  supplies  and  cargo  aboard  when  the  offense 
was  committed  ;  and  for  preparin;^  in  such  waters  to  unlaw- 
fully fish  therein,  penalties  shall  be  fixed  by  the  court,  not  to 
exceed  those  for  unlawfulK-  fishinL,^;  and  for  an\-  other  \iola- 
tion  of  the  laws  of  Great  Britain,  Canada,  or  Newfoundland, 
relatintj  to  th  ^  rijjjht  of  fisher\-  in  such  waters,  bays,  creeks,  or 
harbors,  peuit  ies  shall  be  fixed  b}'  the  court,  not  exceedini( 
in  all  tliree  dollars  for  e\er)'  ton  of  the  boat  or  vessel  con- 
cerned. The  boat  or  \essel  may  be  holden  for  such  penalties 
and  forfeitures. 

The  proceedings  siiall  be  summary  and  as  inexpensive  as 
practicable.  The  trial  (except  on  appeal)  shall  be  at  the  place 
of  detention,  unless  the  judge  shall,  on  request  of  the  defense, 
order  it  to  be  held  at  some  other  place  adjudged  b\-  him  more 
convenient.  Securit\'  for  costs  shall  not  be  recpiired  of  the 
defense,  except  when  bail  is  offered.  Reasonable  bail  shall  be 
accepted.  There  shall  be  proper  appeals  available  to  the  de- 
fense only;  antl  the  evidence  at  the  trial  may  be  used  on 
appeal. 

Judgments  of  forfeiture  shall  be  reviewed  by  the  Governor- 
General  of  Canada  in  Council,  or  the  Governor  in  Council  of 
Newfoundlantl,  before  the  same  are  executed. 


ARTICLE  XV. 

Whenever  the  United  States  shall  remove  the  duty  from 
fish-oil,  whale-oil,  seal-oil,  and  fish  of  all  kinds  (except  fish 
preservxxl  in  oil),  being  the  produce  of  fisheries  carried  on  by 
the  fishermen  of  Canada  and  Newfoundland,  including  Lab- 
rador, as  well  as  from  the  usual  and  neces.sary  casks,  barrels, 
kegs,  cans,  and  other  usual  and  necessary  coverings  contain- 
ing the  products  above  mentioned,  the  like  products,  being 
the  produce  of  fisheries  carried  on  by  the  fishermen  of  the 
United  States,  as  well  as  the  usual  and  necessary  coverings  of 


53 

the  sanic.  as  above  described,  shall  be  adinitted  free  of  duty 
into  the  Dominion  of  Canada  and  Newfonndland. 

And  upon  such  removal  of  duties,  and  while  the  aforesaid 
articles  are  allowed  to  be  brought  into  the  United  States  by 
British  subjects,  without  duty  being  reiniposed  thereon,  the 
privilege  of  entering  the  ports,  bays,  and  harbors  of  the  afore- 
said coasts  of  Canada  and  Newfoundland  shall  be  accorded 
to  United  States  fishing  vessels  by  annual  licenses,  free  of 
charge,  for  the  following  purposes,  namely : — 

1.  The  purchase  of  provisions,  bait,  ice,  seines,  lines,  and 
all  other  supplies  and  outfits. 

2.  Transshipment  of  catch,  for  transport  by  any  means  of 
conveyance. 

3.  Shipping  of  crews. 

Supplies  shall  not  be  obtained  by  barter,  but  bait  may  be 
so  obtained. 

The  like  privileges  shall  be  continued  or  given  to  fishing 
vessels  of  Canada  and  of  Newfoundland  on  the  Atlantic 
coasts  of  the  United  States. 


ARTICLE  XVI. 

This  Treaty  shall  be  ratified  by  the  President  of  the  United 
States,  by  and  w  ith  the  advice  and  consent  of  the  Senate,  and 
by  Her  Hritannic  Majest}',  having  received  the  assent  of  the 
Parliament  of  Canada  and  of  the  Legislature  of  Newfound- 
land, and  the  ratifications  shall  be  exchanged  at  Washington 
as  soon  as  possible. 

In  faith  whereof,  we,  the  respective  Plenipotentaries,  have 
signed  *his  Treaty,  and  ha\e  hereunto  affixed  our  seals. 

Done  in  duplicate,  at  Washington,  this  fifteenth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  eighty-eight. 

(Signed)         T.   V.  l^AYARD,  [.skal 

WILLLVM  L.  PUTNAM,  [skal 

JAMES  B.  ANGELL,  [skai 

J.  CHAMBERLAIN.  [seal 

L.  S.  SACKVILLE  Wl'.ST,  [seal 

CHARLES  TUPPER.  [seal 


« 


54 


A  General   Uoview  of  the   (iiaiiiberlaiii 
Bayard  Treaty. 


The  spirit  that  pervades  the  Treat)-  of  1783  is  that  of  the 
Continental  Con<;ress,  which  h\'  its  resohition  of  May  27th, 
1779,  cfeclared  "  Tliat  in  no  case  by  any  treat)'  of  peace  the 
common  ritjht  of  fishinij;  be  ^iven  up." 

John  Adams,  in  his  letter  of  Ma)^  jOth,  l<Sl4.  to  Richartl 
Rush,  said  "  that  tlie  men  Hayard.  Russell,  Cla)',  and  even 
Gallatin,  would  cede  the  fee  simjjle  of  the  United  States  as  soon 
as  tliey  would  the  fisheries." 

We  recall  that  Ik'njamin  Rusii,  in  his  letter  to  Secretary 
Marc)-  in  I«S53,  sa)s  that  "  1  lati  Mr.  (iallatin  been  UAd  by  the 
liritish  plenipotentiaries  that  the  first  article  of  the  convention 
would  clo.se  the  extensive  waters  of  that  ba)'  (referriuij^  to 
the  Ha)'  of  Fund))  at;ainst  our  fishermen,  I  tlo  not  belie\e  he 
would  have  sis-ned  it.  I  am  sure  I  would  not  ha\e  siirned  it. 
The  spirit,  context,  all  the  concomitants  of  the  article,  pointed 
to  a  different  nieanin<j[." 

Certainly  the  spirit  of  the  treaty  of  18 iS,  and  of  tlie  Ameri- 
can commissioners  of  that  treatv,  was  not  to  abandon  our  an- 
cient  fisliery  rights. 

If  that  same  spirit  pervaded  the  commissioners  on  the  part 
of  the  United  States  in  the  proposed  treaty  of  1888,  it  is  un- 
fortunate that  there  is  nothing  in  the  treat)-,  or  in  what  we 
have  been  able  to  learn  of  its  negotiation,  to  show  it.  On  the 
contrary  the  fundamental  principles  of  property  and  sovereign- 
ty, which  are  the  basis  of  our  fishery  riglits,  .seem  to  have  been 
abandoned  at  the  out.set  by  our  own  commissioners  and  our 
case  to  have  been  presented  and  considered,  as  Mr.  Bayard 
expres.ses  it  in  his  letter  to  a  gentleman  in  Boston,  on  the 
basis  of  the  "fishery  rights  of  one  country  in  the  jurisdic- 
tional waters  of  another." 

"  There  was  one  subject,"  Sir  Charles  Tupper  stated  in  his 
speech  in  the  House  of  Commons  of  Canada,  "on  which  I 
was  glad  to  ."ind  that  the  American  plenipotentiaries  and 
myself  were  entirely  as  one.  They  expres.sed  no  wish  to 
acquire  the  right  to  fish  in  the  jurisdiction  waters  of  Canada. 


55 


With  that  expression  of  oi)inion  on  tlicir  part  I  heartily 
coiiciincd." 

This  ccitaini}-  was  not  ti'catini^  our  fishery  rij^lits  as  "  our 
fisheries,"  to  use  tlie  woitls  of  Mr.  Jefferson,  but  as  "  theirs," 
ami  it  is  therefore  not  surprising;-  to  find  the  results  of  the  ne- 
gotiation in  a  treat)'  which  ahsolutel)'  abandons  the  principles 
and  positions  for  which  the  United  States  "  had  so  lon;^  and 
so  strenuous!)-  contended." 

The  discussions  of  the  commissioners  during  the  nej^otiation 
have  not  been  made  public  b\-  our  commissioners.  TIkm  have 
not  disclosed  what  occurred,  anil  we  are  indebted  for  all  that 
we  have  learned  with  rej;ard  to  the  negotiations  to  the  speech 
of  Sir  Charles  Tupper  in  support  of  the  treat)-,  lie  declared 
his  surprise  that  they  were  not  disclosed.  "  I  have  explained 
to  the  house,"  he  said,  "  my  or  en  t  surprise  at  /i//i////^<;-  tliat  tlicy 
did  not  give  li'/iat  /  iissiniied  that  the  !  :r  -ly  formal  protoeols  to 
ivJdcJi  I  assented  would  give,  \\\\\\.  is  to  say,  all  the  proposals 
made,  and  the  counter  p»  posals,  aiul  the  replies  on  both 
sides.     I  assumed  that  the  protocols  would  contain  those." 

Tile  British  commissioners  therefore  expected  them  to  be 
jnibli.slietl,  but  our  commissioners  have  declined  to  disclose 
them.  While  the  l^ritish  commissioners  not  only  tlid  not 
object  to,  but  expected,  the  details  concerning"  the  net^otia- 
tions  to  be  made  public,  when  the  Senate  asked  for  the 
papers  and  information  concerning;  the  pro<.;ress  of  the  ne- 
[^otiations  the  Tresident  declineil  to  furnish  them.  We  are 
left  neces.saril)'  to  Mr.  Tup])er  to  explain  the  reasons  for 
man)-  of  the  provisions  of  the  treat)'. 

The  headland  theory  of  Canada — the  "  new  doctrine  "  which 
the  British  Govenmient  itself  declined  to  enforce,  is  admittetl, 
and  our  fishinq;  vessels  are  e.xcludetl  from  all  bays  ten  miles 
wide  at  their  mouth,  ami  expressl)'  from  wider  bays  ran<;ing 
from  fifteen  to  twent)--one  miles  in  width,  such  as  the  liay  of 
Chaleurs,  the  Bay  of  Miramichi,  Iv^mont  Ba)',  Offstaimes  Bay, 
Fortune  W\\,  Sir  Charles  Hamilton's  Sound,  and  Barrin^ton 
Bay  ;  and,  conseiiuentl)',  with  the  exception  of  the  Bay  of 
Fund)',  and  a  few  ba)s  on  tlie  Newtoundland  coast,  ever)-  ba)' 
of  value  to  our  fishermen  is  closed  bv  the  treaty. 


% 


56 

Thus  tlic  cliffcicncc  with  Canada  upon  the  headland  theory 
was  proposed  to  be  settled,  and  b}' articles  I.,  1 1.,  III.,  IV'., 
v.,  VI.,  and  VII.  of  the  treaty  the  position  of  the  United 
States  was  abandoned,  and  \aluable  rights,  which  would 
probabl)'  have  been  conceded  at  all  events  not  earnestly  dis- 
puted, were  voluntarily  surrendered. 

Certainl}-  the  new  American  policy  of  concession  shown 
at  the  outset  <>f  the  ne^'otiations,  and  described  by  Sir 
Charles  Tupper,  was  full}'  maintained  throughout.  He  .says  • 
"  I  think  the  \ery  spirit  and  policy  of  this  commission 
which  was  proposed,  was  to  ascertain,  to  settle,  and  to  remove 
these  doubts,  antl  I  sa\-,  when  we  met  the.se  gentlemen  and 
///a'  proposed  to  its  tliis  /iit-nii'v  limit,  and  said  :  If  you  give  up 
the  extreme  contention  that  no  bay,  however  broad  its  mouth, 
can  be  entered  b>'  an  American  fisherman,  xvc  will  ai^nr  to 
take  the  tcii-iiiili'  limit,  nud  wlu//  tluy  met  lis  further  and  said 
that,  ill  addition  to  that  they  looiild  take  up  and  eonsider  the 
question  of  any  special  hays  ive  thought  ought  not  to  he  open  to 
foreigners,  then  we  took  this  question  up,  as  we  ueie  bound  to 
take  it  up,  and  found  a  .solution  by  mutual  concession.  In- 
stead of  giving  in  to  their  contention  that  they  could  go  into 
the  Bale  des  Chaleurs  within  three  miles  of  the  shore,  we 
made  a  treaty  b)-  w  hich  they  cannot  enter  the  Baie  des  Chal- 
eurs at  all.  And  the  honorable  gentleman  knows  that  the 
Miramichi  Wax,  and  a  number  of  other  ba)s  that  we  consider 
of  vital  importance  to  be  kept  free  from  any  kind  of  intrusion, 
have  been  conceded  to  us." 

Article  XI.  provides: — 

"  United  States  fishing  ves.scls  entering  the  ports,  bays,  and 
harbors  of  the  eastern  and  north-eastern  coasts  of  Canada  or 
of  the  coasts  of  Xewfoundland,  under  .stress  of  weather  or 
other  casualty,  may  unload,  reload,  transship,  or  sell,  subject 
to  custt)ms,  laws,  and  regulations,  all  fish  on  board,  when 
such  unloading,  transshipment,  or  .sale  is  made  neces.sar\'  as 
incidental  to  repairs,  and  may  replenish  outfits,  provisions, 
and  supplies  damaged  or  lo.st  by  di.saster ;  and  in  case  of 
death  or  sickness  shall  be  allowed  all  needful  facilities,  in- 
cluding the  shipping  of  crews." 


57 


Without  a  treaty  provision  these  rights  should  be  secure. 
Unless  "  in  stress  of  weather  or  other  casualty,"  when  "  neces- 
sary as  incidental  to  repairs,"  or  "  in  case  of  death  or  sick- 
ness," these  privileges  are  not  to  be  exercised.  No  civilized 
nation  would  retpiire  a  vessel  to  point  to  a  treaty  provision  to 
secure  the  ordinary  rights  of  shelter. 

But  the  effect  of  inserting  this  provision  is  that  it  is  an 
admission  on  our  part  that  without  such  a  provision  our  fish- 
ing vessels  would  not  have  the  right,  and  therefore  they  have 
not  had  the  right  in  the  past  and  they  do  not  have  the  right 
now.  This  is  confirmed  by  the  e.xpression  of  Sir  Charles 
Tupper  when  he  sa\s,  "Although  this  is  a  veiy  considerable 
and  imj)ortant  concession,  and  although  we  were  not  com- 
pelled in  my  judgment,  under  a  strict  literal  interpretation  of 
the  treaty  of  1818,  to  make  it,  )et  it  was  a  wise  and  judicious 
concession  to  make."  Kvidenth-  our  commissioners  agreed 
with  this  view  or  they  would  not  have  as.sented  to  it. 

A  provision  of  this  kind  is  a  disgrace  to  an\-  civilized 
nation  ;  a  provision  less  liberal  than  that  accorded  to  us  by 
articles  IX.  and  X.  of  the  treaty  with  Algiers  in  181 5,  which 
provide  as  f(>llows  : — 

"  Vessels  of  either  of  the  contracting  parties  putting  into 
ports  of  the  other,  and  having  need  of  provisions  or  other 
supplies,  shall  be  furnished  at  the  market  price;  and  if  any 
such  vessel  should  so  put  in  from  a  disaster  at  sea,  and  liave 
occasion  to  repair,  she  shall  be  at  liberty  to  land  and  re-em- 
bark her  cargo  without  pa\ing  an)'  customs  or  duties  what- 
e\er ;  but  in  no  case  shall  she  be  compelled  to  land  her 
cargo. 

"  Should  a  vessel  of  either  of  the  contracting  parties  be  cast 
on  shore  within  the  territories  of  the  other,  all  proper 
assistance  shall  be  gi\en  to  her  crew ;  no  pillage  shall  be 
allowed  ;  the  i)ro])erty  shall  remain  at  the  ilisposal  of  the 
owners ;  and  if  reshij)ped  on  board  of  any  ves.sel  for  exporta- 
tion no  customs  or  duties  whatever  shall  be  retjuired  to  be 
paid  thereon,  and  the  crew  shall  be  protected  and  succored 
until  they  can  be  sent  to  their  own  country." 
See  Statutes  at  Large,  vol.  8,  page  224. 


58 


That  the  X.  and  the  XI.  provisions  should  be  achiiitteil  !))■ 
Anioiicaii  commissioners  as  necessar\'  amendments  to  tlic 
treaties  nejjjotiated  by  John  Adams,  Benjamin  I'^ranklin,  Jolin 
Ja}',  I  lenry  Laurens,  Ali)ert  Gallatin,  and  Richard  Rush  is 
enou<^h  to  make  them  turn  in  their  graves. 

The  Hon.  William  Henry  Trescott,  with  some  iniiis^Miation 
.says:  "  T  refuse  absolutely  to  discuss  '  privileges '  <^nanted  to 
us  in  distress.  The)'  are  not  the  grants  of  treaties  or  arrange- 
ments. They  are  the  common  rights  of  humanit)-.  If  the 
I'Jiglish  aiul  Canadian  authorities  desire  to  refuse  shelter  to 
vessels  in  distress,  to  exclude  a  sick  seaman  from  the  rest 
and  aid  of  a  hospital  (if  any  such  there  be  on  tlie  (Janadian- 
Newfoundlantl  coast)  or  to  compel  a  cargo  of  fish  to  be 
thrown  overboard,  because  it  shall  neither  be  sold  nor  trans- 
shipped, let  them  do  so.  The  common  sense  and  resolution 
of  the  American  people  and  the  public  opinion  of  the  ci\il- 
ized  world  will  correct  such  conduct  sooner  and  surer  than  the 
creak}'  machinery  of  this  diplomatic  invention  of  our  com- 
missioners." 

Notwithstanding  Mr.  Tu|)per  thought  this  was  a  w  ise  antl 
judici.ous  concession,  \'et  it  is  evident  from  what  he  also  says 
that  Canada,  no  matter  what  her  claim,  would  l)e  required  by 
every  rule  of  humanit}-  to  grant  this  much  to  our  fishermen, 
without  the  treat}'  provision. 

"  What  woukl  be  thought  of  Canada,"  he  sa}s,  "  if  an 
American,  or  a  United  States  fishing  vessel — I  do  not  like 
to  use  the  word  American,  becau.se  I  think  it  is  a  term  we 
have  as  much  right  to  as  our  neighbors;  I  prefer  to  speak  of 
them  as  the  people  of  the  United  States,  and  ()urse!ves  as 
Canadians,  antl  when  I  speak  of  the  whole  continent  of 
America  1  do  not  hesitate  to  appl}-  the  term  Americ.m  to  the 
people  of  both  Canada  and  the  United  States — but  what 
would  be  thought  of  Canada  if  a  vessel  of  the  United  .States, 
loadctl  w  ith  fresh  niackere+  or  fish  of  any  other  description,  were 
driven  b}-  stress  of  weather,  and  perhaps  in  a  sinking  condi- 
tion, and  compelled  to  resort  to  a  Canadian  port,  ami  if. 
instead  of  allowing  her  to  transship  her  cargo  or  sell  it  on 
paying  the  ilut}',  and    go   upon   a  marine   slip  for  repairs,  we 


59 

said  :  Nci ;  you  imist  throw  overboard  tlio  whoU-  of  \'onr  cai-^i>, 
because  we  find  \'ou  are  not  allowed  to  brin<j"  \-our  fish  into 
Canada  ?  " 

Article  XI  I.  provides  :  "  l''ishiii<4  vessels  of  Canada  and  Neu- 
foundlaiul  shall  ha\e,  on  tin-  Atlantic  coast  of  the  United 
States,  all  the  privileges  reserved  ami  sicured  1)\-  this  treaty 
to  United  States  fishin'^  \essels  in  the  afores.iid  waters  ot 
Canada  am!  Newfouiulland." 

Under  the  Treaties  of  1783  and  i(Si8  the  Canadians  hail  no 
reciprocal  rij^hts  of  fishin-f  on  our  coast.  Under  the  recipmc- 
it\'  Treaty  of  1.S54  they  were  sjfiven  the  li^ht  in  a  restricted 
degree,  the  provision  being  as  follows: — 

Article  II.  "  it  is  agreed  hy  the  hi^li  coiiiriK  liii.i;  parlits  that  Iliiti^Ii 
siiljieets  shall  have,  in  eonunon  with  the  citi/eiis  ul  the  liiited  Statts, 
the  liberty  to  lake  fish  of  every  Iciiul,  except  shell  lish,  011  the  eastern 
sea  coasts  and  shores  of  the  I 'lilted  States  north  ot'  the  thlrty-si.\th  iiar- 
allel  of  iio'th  latlliuK-,  and  on  the  shores  of  the  several  Inlands  thereinito 
adjaeeiil,  and  in  the  bays,  harbors,  and  creeks  of  the  said  sea  coasts  and 
shores  of  the  I'nileil  .States  and  of  the  said  Islands,  uilhont  l)iin.i^  re- 
strictfd  to  any  distance  iVoin  the  shore,  with  |)ernilssion  to  land  upon 
the  said  coasts  of  the  I'nited  .States  and  of  the  islands  aforesaid,  for  the 
purpose  of  ilryinj;  their  nets  and  cnrlni;  their  lish;  proviiled  that,  in  so 
doin.y;,  they  do  not  Interfere  with  the  ri,i;hts  of  private  projierty,  or  with 
the  fishermen  of  the  I'nited  States  In  the  peaceal)le  use  of  ;my  pari 
of  tile  said  coasts  in  thilr  oeciipaney  tor  the  same  purpose. 

"  It  is  understood  that  the  above-mentioned  lil>erty  applies  solely  to  the 
sea  lishery,  and  that  salmon  and  shatl  tisheries.  and  all  lisheries  in  rivers 
and  mouths  of  rivers  are  hereby  reserved  e.\cliisivel\  for  li'^lurnien  ot 
the  Inited  States." 


Under  the  Treatv  of  iS-|  the  right  was  renewed,  but  re- 
stricted to  the  sea  coast  north  of  the  thirty-ninth  parallel  of 
nortli  latitude. 

Article  XIX.  "  It  is  ajjreed  by  the  lii^b  ct)ntraetinK  parties  that  Urlilsh 
subjects  shall  have,  in  common  with  the  citizens  of  the  I'nited  .States, 
the  liberty,  for  the  term  of  years  mentioned  in  Article  XXXIII.  of  this 
treaty,  to  take  fish  of  every  kind,  e.vcept  shell-lisii,  on  the  eastirn  sea 
coast  and  shores  of  the  I'nited  .States  north  of  the  thirty-ninth  parallel 
of  north  latitutle,  and  on  the  shores  of  the  several  Islands  tluMeunto  ad- 
jacent, and  in  the  bays,  harbors,  and  creeks  of  the  said  sea  coasts  and 
sJKjres  of  the  I'lilled  Stales,  and  of  the  said  islaiuls,  uilhont  beln^  re- 
stricted to  any  distance  trom  the  shore,  witli  permission  to  laiul  upon 
t!\e  said  coasts  of  the  United  States  and  of  the  islands  aforesaid,  for  tlie 


60 

purpose  ol  (lr\  in;;  tliiir  luts  iiiul  ( iirin.i;  tlieir  I'lsli ;  pmvidod  thai,  in  so 
doinn,  tiiey  do  not  intirlVn-  with  the  ri^dits  of  privatr  property,  or  witli 
tlic  lishfriutn  of  lliu  I'nitfil  Stati'S  in  tlu-  |)eaceal)lr  use  of  any  part  of 
thi-  said  coasts  in  their  occupancy  for  the  same  purpose. 

"  It  is  undeist<i(»d  that  lheal)ove -nientioued  iii)erty  a|)phes  solely  to  the 
sea  (isiiery,  and  that  sahiion  and  shad  fisiieries,  and  all  other  lisheries  in 
rivers  and  numths  of  rivers,  are  hereby  reserved  exclusively  for  fisher- 
men of  the  I  nited  States." 


Both  the  Treaties  of  1854  and  1S71  were  careful  to  provide 
that  the  riijfht  (h'd  not  e.xteiid  to  shell-fish,  that  it  applied  only 
to  sea  fishei}',  ami  diil  not  e.xtend  to  salnion,  shad,  or  fisheries 
in  rivers  or  nioiiths  of  rivers. 

No  such  restrictions  are  attached  to  the  privilcL^es  ojven 
under  the  XII.  provision,  but  on  the  contrary  the  fishing  ves- 
sels of  Canada  and  Newfoundland  have  on  the  Atlantic  coast 
all  the  privilecres  reserveil  aiul  seciu'ed  by  this  Treaty  to  the 
United  States  fishing  vessels  in  the  aforesaid  waters  of  Canada 
and  Newfomulland. 

The  opinion  of  the  lion.  Chas.  Levi  Woodbiny  upon  this 
provision  shows  that — 

"  The  effect  of  this  article  is  more  extensive  than  would  ai)pear  on  a 
cursory  reading.  What  are  the  'aforesaid  waters,'  ami  what  'the  privi- 
leges reserved  and  secured  by  this  treaty,'  which  we  are  reipiired  to  re- 
ciprocate on  our  Atlantic  coasts,  ;uid  what  is  the  measure  of  the  recipro- 
city that  this  article  calls  for? 

"  In  '  the  aforesaid  waters  '  we  have  the  '  liberty  '  to  tish  for  all  kinds 
of  tish  Mt-ar  the  shores,  to  land,  «  ure,  and  dry  the  tish  on  a  vast  extent 
of  the  Coasts  of  Canada  and  Niwtonmlland,  but  on  a  limited  portion  are 
excluded  froiu  fishini;  within  three  miles  of  the  shore. 

■'  This  I'Y'bruary  convention  refers  and  relates  to  both  these  classes  of 
waters — see  Article  11 — 'the  ports,  bays,  and  harbors  of  the  eastern 
and  north-eastern  coasts  o(  Canada  or  of  the  coasts  of  Newloundlaiul.' 

"Article  id.  'The  bays  and  harbors  of  the  rencjunced  (ishery  district,' 
(Article  i)  '  iiichulins.;:  certain  interior  i)ortions.'  (.Article  5.1  Thus  the 
witole  waters  of  the  Ikitish  North  .American  seacoast  are  incluiled  iis  the 
field  for  finding  all  the  privileges  which  the  treaty  grants  to  the  British 
vessels  on  our  coasts.  '.All  the  privileges'  nuist  be  ^deaned  tVom  the 
treaties. 

' '  This  ri^ht  to  fish  and  land,  to  dry  and  cure,  nuist  be  extended  to  them 
on  all  our  Atlantic  coasts.  No  reservaticju  is  made  of  any  kind  of  fishinj; 
nor  of  any  part  of  the  coast,  in  or  outside  of  the  State  lines,  or  of  the 
three-mile  line,  or  of  private  rights  now  vested.  The  treaty  will  become 
supreme  over  .Stale  conventions  and  laws. 


6i 

"  It  follows  ihiil  llif  Ciiiiiuliiiiis  ,iiul  Nf\vfi)un<llaiulfrs  ciiii  participate, 
williiii  tliicc  milrs  ol"  tiie  coast  ol  tlic  I  'iiitcd  States,  in  all  tin-  local  lisli- 
ciifs,  livt-r,  hay,  and  coast.  Tlu-  sliad,  lulling,  lobster,  crab,  sii.ippcr, 
terrapin,  bass,  baitlisli,  oyster,  shrimp,  clams,  turtle,  and  spoii^-e  lislier- 
ies  of  the  Soiitlieru  coasts  are  all  laid  open  to  them  as  fully  as  the  cod, 
liake,  and  haddock,  lobster,  6i:c.,  of  tin-  l!aslerii  Stales. 

".State  laws  are  aimiilkd  and  the  entire  e.xistinj^j  jirivate  rij^hts  in  bays 
ami  rivers  now  protected  by  laws  are  wiped  out  by  this  one  article  of 
the  treaty.  Delaware  and  ("hesapiake  Ijays,  the  sounds  of  North  Caro- 
lina, South  (■.iiidina,  Cieornia,  I'Morida,  and  their  rivers,  are  all  made 
free  to  the  lishin^; of  the  Canadians  and  Newfoimdlanders,  in  season  or 
out  of  seas(»ii,  in  any  mode  they  please  to  emi)loy. 

"  Aye,  they'niiiy  clann  that  the  shores  of  the  ( iulf  of  .Mexico  are  part  of 
the  Atlantic  coasts,  and  .Alabama,  .Mississippi,  Louisiana,  and  Texas 
may  be  e(iuall\  iuv.ided. 

"This  is  not  ;m  idle  construction  of  .Article  12.  The  treaty  l)ecomes 
part  of  ArticK'  1  of  the  treaty  of  iSiS  (see  its  pre;nnble).  It  embraces 
a  wider  scope  than  the  renunciation  clause.  :md,  as  the  interpretation  of 
the  treaty  of  iSiS,  its  clauses  become  jjjrafted  and  incorporated  inte.L;iall\' 
as  one  substance  will)  that  treaty.  Tlu-re  is  no  escape  by  sa\ini;  that 
Articles  10,  II,  and  12  are  com|)lete  within  themselves,  for  the  last  clause 
of  Article  losavs  '!>ut  this  enumeration  sh.ill  not  iJirmit  other  ch,ir!;es 
inconsistent  with  the  iiijoynu'nt  of  tlie  liberties  reserved  and  secured  by 
the  convention  of  ()ctt>l)er  20th,  iSi.s.' 

"Can  it  be  dt  nied  this  clause  "reserves  and  :. "cures'  those  "liberties' 
of  iSiS,  and  brin^;s  the:n  within  the  descriptive  words  of  .Article  12,  as 
' privile}.;es  reserved  and  secured  by  this  treaty'  which  are  to  be  reiip- 
rocally  enjoyed  by  tin-  C.madians  and  Xt-wfoundlanders  on  the  Atlantic 
coast  of  the  Cniled  Slates?  The  words  '"  libi-rlies  "  means  privilej;es 
rather  than  '  rij;hls  '  in  all  the  diplomatic  correspondence  of  the  l".n- 
j^lish.     The  United  States  reserves  nothin,i;  in  .Artick-  12. 

"I  think  tluTe  can  be  no  reasonable  doubt  that  .\rtick'  12  will  justify 
a  Mritish  claim  to  i)artiiipate  in  all  our  coast,  ba\',  sound,  and  river  fish- 
eries, and  will  preclude  Conjjress  or  the  .Slalis  from  passiu.!.;  any  laws  on 
the  snbji-ct  without  I'.ritish  consent." 

Tlic  catch  of  Caiiadi  vessels  on  our  coast  arc  not  imports 
from  forcij^n  ports  and  cotild  therefore  be  broiiohi  into  aii)'  of 
our  ports  free  of  duty. 

Re|)ly   of   Secretai}'   of  Treasur\-   to   Speaker   of  tile 
House  of  Representatives,  January  lotlt,  1.S87. 


We  have  reco'rnized  tlie  ri<rht  wliich  is  now  frecK' e.\ercised 
by  Canadian  vessels  in  our  ports  to  bu}'  bait  and  supi)lies  and 
transmit  tlieir  catch  to  Canada. 


62 

And  as  Mr.  Hajaid  lias  said  :  — 

"  No  ndviriiiin'iits  liavi-  Ik-i-ii  moii-  lanifsl  and  ifsoliitf  in  insisting 
that  vi'ssels  clrivt-n  by  stress  of  wt-atlur  into  fon-iKn  harbors  should  not 
be  snbjcct  to  port  t-xaitinns  than  tht-  ( iovcrniniiits  of  {In  at  Mritain  and 
llie  I 'nitrd  Status.  *  *  *  At  tin^  in  tliis  spirit  tiie  ( ■lOviTiuncnl  of 
the  United  .States  lias  been  /ealons,  not  nienly  in  opening  its  ports  freely, 
withont  (iiarjjies,  to  vessels  seekiii);  ihcni  in  storm,  but  in  insisting  that 
its  own  vessels  siekin^  forii^;i)  ports  niuler  sncii  cirt mnslant  es  and  ex- 
clusively for  such  shelter  are  not,  undir  the  l.iws  of  nations,  snbject  to 
eustoin-iionsi-  exactions;  *  *  *  while  in  cases  of  vessels  drivon 
by  storm  on  inhospitable  coasts  both  (iovcrnmeiits  have  assertt-d  it, 
sometimes  by  extreme  measures  of  redress  to  setnre  indenmity  for 
vessels  snfterinj;  under  such  circinnst.nices  from  port  exactions  or  from 
injuries  inllicicd  from  shore." 

The  privilej^c  therefore  [granted  iiiider  the  twelfth  provision 
of  fishinj^  on  our  coast  to  Canadian  fishermen  woidd  ini- 
(inestionably  be  e.xercised  by  them  free  from  the  vexations 
and  annoyances  inflicted  bj-  them  upon  oiir  fishermen. 

No  matter  what  ma)-  be  the  local  laws  of  our  States  on  the 
subject  of  fisheries,  this  ;irticle  in  the  treaty  woidd  be  the 
supreme  law  of  tlie  land. 

"  *  *  *  _.///  (ii'a/iis  iiiadc  or  7vhicli  shall  be  made  loulcr 
the  aiithonty  of  the  ( 'iiited  States  shall  he  the  supreme  law  of 
the  laiitl ;  and  the  //f((i;es  in  every  State  shall  he  hound  there- 
by anythiuii'  in  the  Constitution  or  lai^'s  of  any  State  to  the 
eoiitrary  )iotxi<ithstandini^!' 

Constitution  of  the  Uniteil  States,  Section  2,  Article  VI. 


Tile  sti})ulations  of  a  treaty  are  paramount  to  the  i)ro\isions 
of  the  Constitution  of  a  particular  State  of  the  United  States 
(Gordon's  Lessee  7'.v.  Kerr,  i  Wash.  C.  C.  R.,  322),  and  the 
adoption  of  a  treaty  with  stipulations  of  which  the  provisions 
of  a  .State  law  are  inconsistent  is  eciuivalent  to  a  repeal  of 
such  law  (Fisher's   Lessee  vs.  llarnden,  I  Paine  C.  C.  R.,  58). 

From  our  experience  with  Canada  we  can  be  satisfied 
that  whatever  possible  claim  could  be  as.serted  by  her  under 
this  or  an}'  other  provision  of  the  proposed  Treaty  would 
be  a.sserted  whenever  it  appeared  to  be  for  her  interest  to 
do  so. 


r^ 


63 

As  Canada  is  <^'i\fn  tin.-  same  privilc^^cs  on  (nir  coast  as  arc 
"  rcsLTM'd  and  sec  11  ret  1  "  to  us  in  the  waters  on  the  coast  of 
Canada,  it  cannot  be  said  that  Canada  would  obtain  little  b\ 
tliis  jir<»\ision.  It  her  privileges  on  our  coast  wouhl  be  ol 
little  \alue  then  our  fishery  rights  ha\e  i)een  so  whittled  awa) 
as  to  be  of  little  value.  The  value  and  extint  of  her  rights  on 
our  coast  must  necessariK'  be  the  same  under  that  provision  as 
<iurs  on  her  coast.  Our  rij^hts  under  the  treaties  of  178^  and 
1818  have  been  consiilered  invaluable,  as  thescri^dits  are  ol 
the  same  character  as  those  of  Canatia  itself  Canada  has 
))cen  jealous  of  them  and  endcnored  to  restrict  them.  If 
the)'  have  been  fully  maintained  b}-  the  proposed  treaty  and 
none  of  them  abandoned,  then  it  has  been  proposed  b\'  this 
pro\ision  to  i^rant  .similar  ritjhts  to  her  on  our  coast.  If  our 
ri^jhts  have  I  eeii  maintained  under  the  proposed  treaty  then 
her  riijhts  are  i^reat.  Nothing  eoulil  express  more  clearly 
than  Article  XII.  the  intention  to  i^ixe  reciprocal  privdej^es, 
and,  measurinj;  the  treat)-  b)'  this  provision  of  it,  nothing; 
can  better  show  that  pri\ile<;es  have  been  ^nanted  to  Canada 
which  should  not  ha\e  been  i^ranted.  or  that  rights  have  been 
surrendeied  w  hieh  should  have  been  maintained  .it  all  hazarils. 

Article  XI\'.  provides  th.it  the  penalties  for  unlawful  fish- 
in;4  "  may  extentl  to  forfeiture  of  the  boat  or  \essel  and  appur- 
tenances, and  also  of  the  supplies  and  cari^o  aboard  when  the 
«iffen.se  was  committeil."  Under  the  British  Sea  I-'isheries 
Act  of  1.S6.S  and  1S83  this  offense  when  committed  in  Hritish 
waters  b)-  h'rench  ves.sels  and  tho.se  of  other  countries  is  pun- 
ishable b\-  fine  onl)-,  ami  that  not  exceeding  ^10  for  the  first 
;uh1  ^^"20  for  the  second  offense. 

Article  XV.  in  effect  sa)s  that  our  fishing  vessels  have  not, 
and  until  the  United  States  shall  remove  the  duties  upon  the 
fish  products  of  Canail.i  and  Newfoundland  shall  not  have, 
the  rit;ht  to  enter  the  ba)'s  and  harbors  of  Canada  and  New- 
foundland to  purchase  bait  or  supplies,  transship  their  catch, 
or  ship  crews.  We  did  not  even  retain  what  is  allowed  I'niich 
fishermen  under  their  Treaty  of  1885 — 

"  IIk-  l-rtiicli  fislK'iiiR-n  sfiail  liavf  tiie  riglit  to  l>iiy  l)iiit,  licrrini;,  aiul 
capliii,  on  land  or  at  sea.  in  tlie  liarbors  of  Newfoundland,  w  itlunil  ta.\  or 


<>4 

ini|U(liint;nt  of  ;m\  kind.  afUT  the  fiftli  clay  of  April  <>f<.;uli  yi'ar,  ami 
until  the  end  of  the  tishinj;:  season." 

Art.  X\'II.,  Treaty  between  I'^raiice  .uul  (ireat  Britain. 
XeuroiMuilanil  Fisheries.  Paris,  Nov.  14.  1SS5. 

Article  IX.  of  the  treat)'  provides  that  "  nothing  in  this 
treat}-  shall  interrupt  or  affect  the  free  naxiijation  of  tlie 
Straits  of  Canso  by  fishiiv^  \esst'ls  of  the  I'nited  States." 

In  the  spirit  of  a  j^eneral  denial  and  restriction  of  our  rij^hts 
Canada  sug_i;ested  in  1836  a  (juestion  with  rcLjard  to  our  rij^ht 
to  naviij;ate  the  .Straits  of  Canso.  Wiiile  our  llsliermen  do 
not  fish  or  chiini  to  fish  in  the  strait  the  use  of  the  strait  is 
neces.sary  to  save  a  hnv^,  (hfficult,  and  at  some  seasons  of  the 
year  a  dani^erous  voyatje  around  the  Islanil  of  Cape  Hnion, 
in  .ii«»in^  to  or  coniinj^  from  the  (iulf  of  .St.  Lawrence  where 
our  ri<iht  to  fish  is  uncpiestioned.  Tiie  safet\-  and  conwnieiice 
of  our  vessels  require  the  use  of  tiie  strait,  and  its  use  by  them 
harms  no  one. 

Sabine's  Report  on  the  I'lslu-ries,  pa;^e  465. 

"  .Straits  are  pass-ij-es  aMiiinnnicatiii};  from  one  sea  to  another.  If  the 
use  of  these  seas  is  free,  the  (omnumications  oiii^lit  to  he  equally  free, 
for  otherwise  the  liherty  of  liuse  seas  would  In-  a  <  hiinera.  It  is  not 
surtirient.  therelore,  in  <>rii  r  that  property  in  a  strait  may  he  attributed 
to  a  nation  mistress  t)f  its  shores  to  say  that  the  strait  is  actually  in  the 
power  of  this  nation,  that  it  has  the  means  of  oiulrollinj;  the  p.»s->a:.;e  by 
its  artillery  or  by  any  other  mode  of  aitioii  uv  defense  ;  in  a  worti  that  it 
is  able  to  have  the  waters  really  in  its  possession." 

Vol.  I.  page  146,  Ortolan,  Diplomatic  de  la  Mer. 

"Straits  are  passajjes  comnumicatin^  from  one  sea  to  another.  If  the 
navi!.;ation  of  two  seas  thus  connected  is  free,  the  navij;ation  of  the 
rhannel  by  which  tluy  are  comucted  oiinht  also  to  be  tree,  liven  if  such 
strait  be  bounded  on  both  sides  by  tlie  territory  of  the  same  soverei;;n, 
and  is  at  the  same  time  so  narrow  as  to  be  commanded  by  cannon  shot 
from  both  shores,  the  exclusive  territorial  jurisdiction  of  tli.tt  sovereign 
over  such  strait  is  controlled  by  tlie  rij;ht  of  otiur  nations  to  conununi- 
cale  with  the  seas  thus  connected." 

Lawrence's  Wheaton,  Int.  Law,  page  328. 

When  it  is  remembered  that  our  right  to  fish  in  the  Gulf 
of  St.  I^nvretice  is  adiiiitted;  that  it  is  neces.sary  to  use  this 
strait  to  re.ich  the  gulf;  th.it  Canada  has  never  dared  to  seize 


0" 


a  fishiiiti  \esscl  of  tlic  United  States  (^n  its  \va\-  to  or  coming 
from  the  Gulf  of  St.  Lawrence  ;  that  it  would  he  a  \  iolatioii 
of  a  fundamental  |)rincii)le  of  international  law  and  of  comity 
to  interfere  with  our  \essels  w  hiie  so  using  the  strait,  it  can 
harilly  be  conceiveil  that  Can.ida  would  insist  upon  her  claim 
to  close  the  strait  to  American  vessels.  The  liritish  Commis- 
sioners did  not  (.Acr  present  this  claim,  but  on  the  contrar\' 
the)-  of  their  own  motion  inserted  this  provision. 

Mr.  Tupper,  in  explaining  this  article  to  the  House  of 
Commons,  .saiil : — 

"  I  may  explain  to  the  house  tlftit  that  was  not  a  surremler 
of  Ihitish  interests  or  Canadi.m  interests  at  the  dictation  or 
at  the  re([uest  of  the  plenipotentaries  of  the  United  States. 
That  clause  :>.-as  iiistihii  in  the  treaty  hy  oiiisilvcs,  and  for 
this  reason:  That  the  rule  for  the  tlelimitation  which  was 
atlopted,  the  ten-mile  rule,  would  ha\e  necessarih'  excluded, 
if  we  took  in  Chedabucto  Hay,  which  we  did  take  in  b\-  making 
the  delimitation,  as  honorable  gentlemen  will  see,  iu)t  from 
one  .side  of  the  main  land  of  the  ba\'  to  the  other,  whicii  would 
have  opened  it  to  the  United  Slates,  but  from  the  island 
between;  by  that  delimitation  the  United  .States  would  have 
been  shut  out  altogether  from  |)assing  through  the  Straits  of 
Canso,  becau.se  thej-  could  not  have  gone  into  Chedabucto 
Ra\',  and  therefore  they  asked  that  Cheilabucto  Hay  should 
be  excluded  from  the  delimitation,  which  made  it  an  exclusive 
bay,  in  onler  to  j)rt'vent  their  being  shut  out  of  the  navigation 
of  the  Stiaits  of  Canso.  Well,  sir,  under  thosi-  circumstances 
we  tnet  that  by  providing  nothing  new.  We  provideil  simpl}' 
that  nothing  in  this  treat)*  should  interrupt  the  free  navigation 
of  the  .Straits  of  Canso,  as  previously  enjo)ed  by  fishing  ves- 
.scls,  to  "i^'hiih  li'V  confined  it,  and  in  that  wa)-  we  a\oiiled  niak 
ing  an  exception  of  Chedabucto  Ha\-,  which  is  the  entrance 
from  the  Atlantic  sitle  of  th :  .Straits  ot  Canso." 

Unfortunatel)-  this  pro\  ision  refers  to  "fishing  vessi-ls  "  onl)', 
so  that  if  the  treat)-  had  been  ratified  C'anaila  could  and  wouKI 
have  claimetl  that  it  recognizee!  her  right  to  close  the  strait  t(» 
all  American  vessels,  ami  that  American  fishing  vcs.scls  only 
could  navigate  the  strait. 


f 


66 


The  article  inserted  by  tlie  liritish  Coniniissioners  on  tlieir 
own  motion  is  pointed  out,  however,  as  a  L;reat  triumph  I)\- 
our  Commissioners. 

"  The  uninterrupted  na\iL,fation  of  the  Straits  of  Canso  is 
expressly  and  for  tlie  first  time  confirmed,"  says  President 
Cle\eland. 

Under  some  circumstances  it  wouhl  not  be  said  that  tlie 
IX.  provision  is  one  to  be  Ljrateful  for,  but  probabh-  wlien  tlie 
treaty  as  a  whole  is  examined  we  can  join  Tresident  Cleve- 
land in  his  con>,M-atulations  that  this  much,  at  all  ewnts,  has 
been  retained  for  our  fishins^  vessels. 

We  are  told  of  the  \(>un<^  ph\sician  who,  havinL,^  been 
called  in  at  an  event  in  a  famil\-,  was  askcil  by  an  anxious 
fiieml  hou  the  mother  and  child  were  doin;^,  and  of  his  en- 
thusiastic reply,  "()h!  the  mother  and  child  are  dead, but  the 
old  man  is  safe."  So  while  the  treaty  rights  of  1783  and  1S18 
were  surrendered  under  the  proposed  treat)-,  we  have  the 
enthusiastic  declaration  that  our  fishiiiLj  \essels  will  still  have 
the  ri;4ht  to  navi_L;ate  the  .Straits  of  Canso. 

Without  conuuentiiiLj  upon  the  provision  that  "  e\ery 
United  States  fishing  \essel,"  without  limitinL,^  its  application 
to  those  eiiL^aj^'ed  in  fishinc^  on  the  Canadian  coast,  shall  have 
"  its  official  numi)er  on  each  bow,"  or  upon  the  words  "  wood 
aiul  water"  in  the  tenth  clause  (after  the  denial  of  Canada  th.it 
the  wort!  "wood"  in  the  Treat)-  of  1S18  means  Aiel,  and  that 
consecpientl)'  our  vessels  are  forbidden  to  purchase  coal  for 
fuel),  or  upon  the  absence  of  an\-  provision  securiiiL^  indem- 
nit)'  for  our  vessels  depri\eil  of  treaty  ri<,dits,  driven  out  of 
port  into  storms,  witiiout  food  or  supplies,  or  the  inhumanit)' 
anil  brutality  inflicted  on  our  fishermen,  we  ha\e  a  treaty 
ba.scd  not  upon  our  great  and  ancient  fishing  rights  as  evi- 
denced !))•  the  Treaties  of  1783  and  iSiS,  but  upon  the  tlieorj- 
that  the  Treat)-  of  1783  has  no  existence  and  that  we  are 
entitled  onl)'  to  the  mere  "fishing  rights  of  one  nation  in  the 
jurisdictional  waters  of  another,"  not  upon  the  theory  of"  our" 
fisheries  but  theirs,  a  treat)-  that  absolutely  surrenders  princi- 
ples which  ha\e  at  all  hazards  been  strenuously  contemled  for 
and  maintaineil  since  the  organization  of  our  Government — a 
treaty  that  sells  our  birthright  for  a  mess  of  jjottage. 


ir 


(>7 

The  ii'.icstioii  naturall)-  ivciirs,  \Vli\'  tliis  desiri'.  wliy  this 
.in.\ict\-  to  press  the  ach)i)ti()n  of  this  treat),  wlieii  the  Treaties 
of  1783  and  181S,  if  fairly  coiiiph'ed  with  or  enforced  accord- 
intj  to  tlieir  terms,  are  sufficient  for  oiu  purposes ;  when  our 
experience  with  Canada  in  tlie  past  in  perfoiniinj;  treat}'  obH- 
•gations  has  not  been  such  as  to  assure  us  that  an)-  new  treat)' 
would  receixe  from  her  any  greater  respect;  when  the  Senate 
!j)-  a  majorit)-  of  25  declared  in  1SS6  that  the  appointment  ol 
commissioners  to  frame  a  new  treat)'  was  not  ad\isable ;  and 
w  hen  the  ICxecutive  has  declined  to  furnish  to  the  Senate  the 
papers  and  information  concernin<j^  the  pro;4rcss  of  the  nego- 
tiations of  tlie  treat)',  includiuL;  the  proposals  ami  counterjiro- 
posals  made  ? 

Alto<;ether  is  there  not  reason  for  reLjret  and  for  some  ap- 
prehension that  the  Chief  Ivxecutive  of  this  countr)',  notwith- 
standing the  rejection  of  the  proposed  Treat)',  shoulil  officially 
reassert  "  that  its  provisions  were  ailequate  for  our  securit)'  in 
the  future  fiom  vexatious  incidents,  and  for  the  promotion  ot 
friendK'  neighborhood  and  intimacx',  without  sacrificiiuf  in 
the  least  our  national  pride  or  diL;nit)-." 

Certainly  a  change  has  come  over  the  people  of  this  countr)' 
if  we  cannot  sa)',  as  Lewis  Cass  said  in  the  Senate  in  1852 
(\ ol.  25,  App.  Contj^.  Globe,  pa;40  895),  in  referrin<j  to  our  riL;ht 
to  fish  in  the  North  Atlantic  and  the  niethoils  then  adopted 
to  harass  and  annoy  our  fishermen  in  tlu'  exercise  of  that 
ri^ht:  "  We  mean  to  hold  on  to  it  throu<;h  the  whole  extent 
of  the  ;^reat  deep,  now  in  the  da)'s  of  our  strenj^th,  as  our 
fathers  helil  on  to  it  in  the  da)s  of  our  weakness.  Siiould 
we  abandon  this  attribute  of  iiuLpendence,  even  in  an\'  ex- 
trcmit)'  which  human  sa<.;acit)'  can  foresee,  we  should  i)rove 
recreant  bt)th  to  the  Ljlories  of  tlie  past  and  to  the  hopes  of 
the  future,  to  the  deeds  of  our  fathers  and  to  the  just  expecta- 
tions of  our  children.  I  know  but  little  of  the  character  of 
my  countrymen,  if  the)'  would  not  reject  with  indignation  an)' 
proposition  thus  to  tarnish  their  histor)',  and  to  w  rite  their 
own  dishonor  upon  it." 


W 


MMMti 


